Levin on Hannity: Mueller can't prosecute Trump, according to DOJ

The question of President Trump obstructing justice by firing FBI Director James Comey is an issue of “media insanity,” Conservative Review Editor-in-Chief Mark Levin said Tuesday.

Levin appeared on Fox News’ “Hannity” to discuss a decade-old Department of Justice memorandum that clearly states it is the position of the government that the sitting president of the United States cannot be indicted or criminally prosecuted; that to do so would “impermissibly undermine the capacity of the Executive Branch to perform its constitutionally assigned functions.”

“We’ve had a debate the last several weeks as a result of the Jim Comey illegal leak,” Levin said. “The suggestion is that Donald Trump obstructed justice.”

“Now, you and I know, and anybody with any competence knows that the president of the United States not only didn’t obstruct justice, he can’t obstruct justice.” 

Levin criticized the “media insanity” surrounding reports that special counsel Robert Mueller, the prosecutor overseeing the probe into Russian meddling in the 2016 election, is investigating whether President Trump obstructed justice by firing FBI Director James Comey. 

“This has been the debate for weeks – obstructing justice. What Mueller has investigated, that’s not the question, that’s media insanity,” Levin said. “The issue is: ‘why would Mueller investigate a sitting president at all, as a criminal matter?’ Because it’s been the position of the United States Department of Justice under Republicans and Democrats, in a 1973 memorandum and under an October memorandum under the Clinton administration, that you must not, cannot indict a sitting … as a matter of constitutional interpretation.”

That’s been the position of the DOJ for 44 years, Levin explained. None of the hysterical media coverage or consternation of members of Congress matters since “the official position of the justice department is ‘we don’t charge a sitting president with a crime,” Levin said.

“There’s only one person who runs the Executive Branch, who’s the commander-in-chief: the president of the United States,” he continued.   

“You cannot have a prosecutor who is responsible to nobody digging into the background, charging a president of the United States, debilitating his presidency, making it impossible for him to focus on his constitutional responsibilities, domestic and foreign. You cannot have a judge, and a jury determining whether an election is going to be reversed. You cannot have average citizens, yes, I said average citizens, twelve citizens sitting as they typically would in an average case involving an average other citizen defendant – that’s not this case. It’s the president of the United States, and the framers of the Constitution set up a completely different system for him or her.”

“If a president of the United States has to expend time defending himself; if a president has to expend time going to trial, being deposed, if the president has to spend time protecting himself then it damages, it handicaps one of the branches of the federal government and thereby destroys separation of powers. This is the position of the Department of Justice.”

This matters, Levin expounded, because “Mr. Mueller isn’t independent. They can call him independent, special prosecutor, they can call him a kumquat. It doesn’t much matter. The fact of the matter is the rules and regulations at the Department of Justice that apply to all prosecutors apply to Mr. Mueller.” 

Therefore, Mueller cannot constitutionally prosecute an obstruction of justice case against the president of the United States and have the president indicted, according to Levin.

"I want to be clear," Levin said in closing. "We ought to get off obstruction and the issue should be: 'Mr. Mueller, what is your authority for investigating the president of the United States as a criminal matter? We'd like to know what it is because right now, if that's your intention' – I'm not saying he's doing it, we don't know – ‘you’re violating Department of Justice policy that’s 44 years in place.'”