Joseph diGenova, the newest member of President Donald Trump‘s legal team for the Russia investigation, wrote in a 1997 op-ed that the nation “could conceivably benefit from the indictment of a president,” because “it would teach the valuable civics lesson that no one is above the law.”
At the time, diGenova was writing about then-President Bill Clinton, who was the subject of an independent counsel investigation during his second term. But diGenova’s position on indicting a sitting president could put him at odds with other members of Trump’s legal team, and could even force diGenova to argue against his own position at some point in the future.
DiGenova’s 1997 op-ed in The Wall Street Journal opened with a paragraph that would look at home in a newspaper today, arguing that the large number of allegations against the president made it necessary to take a hard look at how exposed the president might be to prosecution.
“Can the president of the United States be indicted? The question is of more than academic concern now,” diGenova wrote. “Every day brings fresh revelations of potentially criminal conduct by Bill Clinton, Al Gore and their aides, in matters ranging from Whitewater to Filegate.”
Fast forward 20 years, and a U.S. president is again facing “fresh revelations of potentially criminal conduct” on a near-daily basis, only this time the president is Trump, diGenova’s new client.
In the past week alone, Trump and those closest to him have faced fresh allegations of obstructing justice, falsifying business records, improperly interfering in a federal personnel matter, and illegally seeking to silence both White House employees and the porn star Stormy Daniels. Trump and his lawyers deny all these allegations.
Nonetheless, like diGenova says, the question of whether, and how, a president can be prosecuted is no longer academic; it’s an urgent, real-world issue.
A question that so far, Trump’s legal team has tried to answer with a resounding “No.”
The “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case,” Trump lawyer John Dowd wrote to Axios in December. The possibility that Trump obstructed justice last year when he fired then-FBI director James Comey is reportedly among the chief avenues that special counsel Robert Mueller is pursuing.
Another of Trump’s lawyers, Jay Sekulow, has taken a similar tack, arguing that allegations of “collusion” between the Trump campaign and the Russian government during the 2016 presidential campaign do not constitute a crime. “For something to be a crime, there has to be a statute that you claim is being violated,” Sekulow told The New Yorker in late 2017. “There is not a statute that refers to criminal collusion. There is no crime of collusion.”
Yet the Trump attorney who has gone the farthest down this line of argument may be diGenova himself.
A former U.S. Attorney, diGenova pushed a theory earlier this year on Fox News that the entire special counsel probe is illegitimate, because it stems from “a brazen plot” by the FBI “to illegally exonerate Hillary Clinton and, if she didn’t win the election, to then frame Donald Trump with a falsely created crime.”
The motive for this alleged secret FBI plot to frame Trump, diGenova said, “is that they didn’t like Donald Trump, they didn’t think that he was fit to be president, and they were going to do everything within their power to exonerate Hillary Clinton. And if she lost, to frame Donald Trump with a false crime, because they didn’t think he should be president.”
DiGenova did not immediately respond to questions from CNBC about his 1997 op-ed or his current legal strategy.
In many ways, diGenova’s conspiracy theory about the FBI more closely resembles the president’s thinking than do the arguments made by his other lawyers about whether a sitting president can be prosecuted.
Trump believes that the special counsel’s Russia probe is part of a vast conspiracy against him, perpetrated by federal employees still loyal to his Democratic predecessor, President Barack Obama. On Monday, Trump again tweeted that the probe was a “total witch hunt.”
The announcement of diGenova’s hiring Monday came on the heels of a 48-hour period during which Trump challenged the legitimacy of the Mueller probe and repeatedly attacked the FBI, the Department of Justice and the State Department.
