(RNN) – Special counsel Robert Mueller's team has told Rudy Giuliani they intend to follow Department of Justice precedent and will not indict President Donald Trump, according to CNN.
The DOJ's position has been that a sitting president cannot be indicted since President Richard Nixon’s Watergate saga.
Giuliani, the former New York City mayor and member of Trump's legal team, told CNN that Mueller's team acknowledged "after some battling" that they cannot indict Trump.
"All they get to do is write a report," he said.
Deputy Attorney General Rod Rosenstein, who officially is in charge of the Russia investigation, also acknowledged the precedent at a forum earlier this month.
"The Department of Justice has in the past, when the issue arose, has opined that a sitting President cannot be indicted," Rosenstein said. "There's been a lot of speculation in the media about this, I just don't have anything more to say about it."
The matter has never been addressed by an American court.
Elements of the issue were argued before the Supreme Court during United States v. Nixon in 1974, a case in which Nixon was legally compelled to abide by a subpoena from Watergate special prosecutor Lee Jaworski. But the particular issue of whether Nixon himself could be indicted was not ruled on.
Since then, the DOJ has held "that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions."
Going farther back, the Constitution appears to prioritize impeachment by the Senate before he or she faces criminal charges as a citizen.
Article 1, Section 3 of the Constitution states: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment according to Law."
Alexander Hamilton, one of the Constitution's most influential figures, explicitly held this position, writing in The Federalist Papers in 1788: "The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law."
Giuliani told CNN the president's legal team feels the matter is Constitutionally clear.
"We think it's a constitutional rule," he said, "but I don't think you're ever going to confront that because nobody's ever going to indict a sitting president."
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