Constitutional law scholars told The New York Times that Trump’s lawyers’ position, if accepted by the judge, would “set a sweeping new precedent” but added that the attorneys’ theory was “not based on established case law.” Of course, the Constitution does not actually say that a president cannot be indicted. When Mueller earlier this year said that his office was prohibited from bringing charges against the president, he cited only a memo from the Justice Department’s Office of Legal Counsel as the reason a president could not be indicted. Mueller also said in May that the DOJ “explicitly permits” the investigation of a sitting president.
Paul Rosenzweig, who along with Kavanaugh was a member of special prosecutor Ken Starr’s investigation into Clinton, told Vice News that he does not expect the argument to hold up in court.
“I think it’s clear that the president is engaged in an effort to conceal and delay,” he said. “It’s hard to say whether that’s because there’s something bad there, or because his entire life indicates a general instinct to conceal and delay.”