Can Donald Trump be indicted while in the White House? Prosecutors say case against Trump is 'way beyond Watergate level already'

New York: Can US President Donald Trump be indicted while in office? After Trump’s former fixer Michael Cohen implicated the US president in a criminal case and is now going to jail for 36 months, this is the hottest question in American politics. The judge who sentenced Cohen made a reference to the US President without naming him in his statement which basically said Cohen made  hush payments to two women (with the intention of influencing the 2016 US election) “at the direction of and in co-ordination with Individual 1" which happens to be Donald Trump. Every lawyer in town is saying Trump is an “unindicted co-conspirator” in a federal crime and Watergate era lawyers are saying the facts here are “way beyond Watergate” level already. Trump, of course, refutes this daily in public and fumes in private about impeachment fears.

Late Thursday evening, news has just broken on NBC that Donald Trump was in the room when the hush money deal was sealed. Donald Trump’s impeachable fears just went up a couple of notches after the Michael Cohen sentencing and the drip-drip of Mueller investigations have reached fever pitch. Trump has reportedly confided in friends saying he is concerned about impeachment. Trump’s latest legal troubles are not coming directly from the Mueller probe into Russia’s alleged meddling in the 2016 elections, it’s coming from a new direction - career prosecutors from the Southern District of New York who have detailed exactly how Cohen paid off the women and what Donald Trump’s role was.

Here’s the breakdown of where things stand on the Mueller investigation at this time: Four people have been jailed or sentenced to jail, including Michael Cohen; Trump’s former campaign chairman Paul Manafort has been convicted and will be sentenced soon; two have pleaded guilty - Michael Flynn and Rick Gates; more than two dozen people including Russian nationals have been charged and finally, Donald Trump, his son Donald Trump Jr., son-in-law Jared Kushner and two others are ‘persons of interest’.

So, where do we go from here? A handful of legal experts have been hammering away at the ‘yes, Trump can be indicted’ theme on American news media.

“Has anyone thought to tell DonaldTrump that he has the right to remain silent?”, says Mathew Miller, formerly with the Department of Justice, in reaction to how each time Trump tweets, he drives himself and the White House into deeper political and legal peril at a time when multiple cases threaten to nail him.

Watergate prosecutor Nick Ackerman compares the Trump organization to the mafia but says “even mafia bosses are way smarter than the way Donald Trump runs his business.” “Can you imagine your own fixer taping you while you’re talking about paying off women to protect your campaign?!”

“Everyday, an additional piece of the puzzle comes together. He (Trump) knew about it (hush payments), it was not for personal reasons that he tried to keep these women silent. This (Cohen sentencing) brought back to me a lot of memories about John Dean’s book called Blind Ambition - especially when Cohen said it was blind loyalty to the president that led him to this”, says Jill Wine Banks, another Watergate era prosecutor. Banks says the facts tying Trump to a criminal offence are “way beyond Watergate” level already.

Sentencing memos in the Michael Cohen case implicate Trump in illegal campaign expenditure and links to Russians involvement in the 2016 elections. All this is leading to a few dominant themes on American newspapers’ front pages: - If there’s enough here already to indict Cohen, there’s enough to indict Trump. - Not so fast. A Justice Department memo from the 1970s suggests sitting presidents should not be indicted. - If impeachment is the only option, that’s nearly impossible in a divided government — Republicans control the Senate, Democrats control the House.

“This isn’t settled law, though most legal analysts conclude that an indictment is unlikely — the Justice Department has had an internal policy since 1973 that sitting presidents cannot be indicted. But there is another policy that can use the 1973 Office of Legal Counsel opinion to its advantage and achieve the same effect as an indictment without having to issue one: the special counsel regulations under which Robert S. Mueller III is appointed”, writes Asha Rangappa, senior lecturer at the Jackson Institute for Global Affairs at Yale University and a former FBI agent, in Washington Post.

“Article II, section four (of the US Constitution) outlines the process for impeaching and removing a president from office. It declares that the president, vice president and other civil officers of the United States can be removed from office by “impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. While treason and bribery have clear meaning, what are high crimes and misdemeanors?”, asks David Schultz, professor of political science at Hamline University in St. Paul, Minnesota, and a professor of constitutional law at the University of Minnesota.

Neal Katyal, former Acting Solicitor General makes an important distinction between settled law, the DoJ guidance and the torrent of Trump dirt that’s spewing from the sentencing memos and where all these paths meet. “This goes to the heart of how Trump became president in the first place. You can’t have a winner takes all system that sends the message that if you lie often enough and well enough, you can win and stay there. If the president continues to say he’s above the law, then he is inviting impeachment proceedings”.