CLAIM

A sealed indictment has been granted against President Donald Trump.

UNPROVEN

RATING

UNPROVEN

ORIGIN

On 13 May 2017, Louise Mensch and Claude Taylor (both of whom have appointed themselves citizen investigators on the topic of Russia’s meddling into U.S. political affairs) made the explosive claim that a “sealed indictment” has been issued against President Donald Trump. In a blog post on the web site Patribotics.com, they reported:

Separate sources with links to the intelligence and justice communities have stated that a sealed indictment has been granted against Donald Trump.

While it is understood that the Supremacy Clause of the Constitution means that, until Mr. Trump is impeached, he cannot be prosecuted, sources say that the indictment is intended by the FBI and prosecutors in the Justice Department to form the basis of Mr. Trump’s impeachment. The indictment is, perhaps uniquely, not intended or expected to be used for prosecution, sources say, because of the constitutional position of the President.

Initially, Taylor reported on Twitter that the indictment had been issued by a Foreign Intelligence Surveillance Act (FISA) court:


This aspect of the claim is demonstrably not true. New York University law professor Christopher Jon Sprigman told us in a phone interview that the FISA court exists for one purpose only, and that is to grant surveillance warrants:

With respect to the FISA court, that court doesn’t issue indictments. It considers requests for surveillance authority by intelligence agencies and it grants what are refered to as FISA warrants. With the respect to the sealed indictment, indictments are typically what grand juries do and the FISA court has no power to convene a grand jury. The FISA court is a special purpose court.

Taylor later backtracked, noting he had erred in claiming a FISA court had issued an indictment, and added more detail, saying the story is based on two sources:


When asked about the story, Mensch sent us an e-mailed response that seemed to contradict Taylor:

I have never made any such claim (re FISA court). It would be ironic were Snopes to say so, as that would be untrue. Further as a fact-checking website ought you to email me with false facts, such as “two sources”? The story does not specify the number of sources, beyond using the plural.

I have no intention of providing any details which might identify sources. I am perfectly confident in my reporting.

The story stands as reported. One reason it is short is because it represents what the sources of the co-authors agreed precisely. 

Some attorneys seemed doubtful that an indictment against the president had been issued, in part because in 1973 during the Watergate scandal, the Department of Justice’s Office of Legal Counsel (OLC) determined that a president is immune to criminal prosecution while in office:

In 2000, Randolph Moss, assistant attorney general for the OLC concluded that opinion was still valid, with the caveat that it hasn’t been adjudicated in court:

In 1973, the Department of Justice concluded that the indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers. No court has addressed this question directly, but the judicial precedents that bear on the continuing vaUdity of our constitutional analysis are consistent with both the analytic approach taken and the conclusions reached. Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.

Sprigman pointed out that five months after President Richard Nixon was named as an unindicted co-conspirator by prosecutors, he resigned from office before impeachment proceedings could be resolved.

On 14 May 2017, Taylor updated his claim to say the indictment was coming “out of Eastern District of Virginia-under Dana Boente. Trump, Manafort and Flynn-among others under sealed indictment.”

We asked the spokesman for the U.S. Attorney’s Office, Eastern Virginia District whether this was true. He declined to comment. 

On 10 May 2017, CNN reported:

Federal prosecutors have issued grand jury subpoenas to associates of former National Security Advisor Michael Flynn seeking business records, as part of the ongoing probe of Russian meddling in last year’s election, according to people familiar with the matter. CNN learned of the subpoenas hours before President Donald Trump fired FBI director James Comey.

The subpoenas represent the first sign of a significant escalation of activity in the FBI’s broader investigation begun last July into possible ties between Trump campaign associates and Russia.

Seth Abramson, an assistant professor at the University of New Hampshire who used to work as a public defense attorney, told us the subpoenas seem to indicate that the investigation is still in its early stages:

The information being passed around Facebook and Twitter by Claude Taylor and Louise Mensch does not comport with American criminal procedure in any respect. Grand juries are regularly convened by federal and state courts as a matter of course, and cases are brought to them as prosecutors develop them to the point of seeking an indictment. It would surprise no one if there’s a sitting grand jury in Virginia able to hear proffers or witnesses or other evidence from prosecutors working on the Russia investigation, as this would happen in the normal course of business in a federal court. Perhaps information derived from a FISA surveillance warrant could be presented to a grand jury, and certainly there is some information in public reports suggesting that Michael Flynn could be indicted for some of his conduct (violation of the federal statute prohibiting making false statements to the FBI, a violation of the FARA statute, and perhaps one or two others relating to obstruction of justice).

“FARA” refers to the Foreign Agents Registration Act; Flynn registered as a foreign agent after revelations he took payment from the Turkish government for consulting work became public.

Abramson further noted that the FBI would have no role to play in a presidential impeachment, and as anyone who remembers the Bill Clinton trial can attest, impeachment does not equate to removal from office. In the United States, articles of impeachment must be brought by the House of Representatives, and the Senate then conducts a trial. The president is only impeached if convicted by the Senate on a two-thirds vote:

The FBI has no direct role in impeachment proceedings or authority over how they are conducted. Impeachment is a political process run by ‘managers’ in the House who can use evidence derived by the executive branch (e.g., the FBI) but would in no way be beholden to the FBI. The House cannot initiate its prosecution of a sitting president until articles of impeachment have been formally and publicly presented, making it an impossibility that the FBI would covertly be working with anyone in Congress on this issue. So that element of what Taylor and Mensch are saying also does not comport with criminal process in the United States.

Whether or not an indictment has been issued against the president remains unclear, because the blog post is so vague and the sources anonymous. But as Sprigman pointed out, in terms of the investigation into accusations of collusion with the Russian government between President Trump and his associates, the country is in “terra incognita” — uncharted land.

While no one really knows for certain (or the ones who do aren’t saying anything) legal experts are unconvinced an indictment has been made against Trump, because according to precedent, a sitting president would have to be fully impeached before being charged with a crime. It seems unlikely federal prosecutors would contradict the Department of Justice. But as Sprigman noted, the current situation defies precedent in many ways:

Indicting the president as a way of signaling Congress? God only knows. Things have been crazy lately, but if we’re looking at an indictment that would be very, very novel.

Added quote from Louise Mensch.

Sources:

Mensch, Louise, and Taylor, Claude.   “Sealed Indictment Granted Against Donald Trump.”
     Patribotics.com.   13 May 2017.

Department of Justice.   “Amenability of the President:, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office.”
    24 September 1973.

Department of Justice Office of Legal Counsel.   “A Sitting Presidents Amemalbility to Indictment and Crimimal Prosecution.”
    16 October 2000.

Perez, Evan, et al. “CNN Exclusive: Grand Jury Subpoenas Issued in FBI’s Russia Investigation.”
  CNN. 10 May 2017.

Schouten, Fredreka.   “Trump Team Knew Michael Flynn Might Register as a Foreign Agent for Turkey Work.”
    USA Today.   10 May 2017.