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Mueller doesn't plan to indict Trump because of DOJ rules, Giuliani says

"They acknowledge the fact that they can't indict us," Giuliani told NBC News on Wednesday.
Image: Robert Mueller
Former FBI Director Robert Mueller, the special counsel probing alleged Russian interference in the 2016 election, after a closed-door meeting in Washington in on June 2017.Andrew Harnik / AP file

WASHINGTON — Special counsel Robert Mueller's office has told President Donald Trump's legal team that he won't indict a sitting president, according to Rudy Giuliani, one of Trump's lawyers.

"They (the special counsel's office) acknowledge the fact that they can't indict us," Giuliani told NBC News on Wednesday, indicating that the information had been conveyed to Trump's lawyers. "They know they don't have that power. So their function is to write a report. We would like it to be the fairest report possible. But even if it isn't, we're prepared to rebut it in great detail, so we'd like them to do it."

He added: "It's as clear as can be that they don't have the right to indict under the Justice Department rules. And I know they're not going to indict."

In another interview with NBC News, on Thursday, Giuliani revealed that the acknowledgement from Mueller's team that they do not plan to indict Trump came from Jim Quarles, a member of the special counsel team. Giuliani said that Quarles had informed Jay Sekulow, another member of Trump's personal legal team, that they are not looking to indict the president.

"We raised the question with Mueller. He wanted to think about it. And about a day or two later Jim Quarles called Jay Sekulow back," Giuliani told NBC News Thursday. Quarles "told Jay that they were bound by the Justice Department policy."

During the final months of the administration of President Bill Clinton in 2000, the Justice Department's Office of Legal Counsel said in a memo that "the indictment or criminal prosecution of a sitting president would be unconstitutional."

Neal Katyal, acting solicitor general in the Obama administration — the administration's top courtroom lawyer — wrote the current special counsel regulations as a young lawyer in Clinton's Justice Department in 1999. They specify that a special counsel "shall comply" with the policies of the Justice Department, for whom Mueller works.

Katyal said on MSNBC's "The Beat With Ari Melber" in February that means that Mueller is bound by the 2000 Justice Department memo but that he "can seek exceptions."

"This old opinion from 20 years ago does preclude, in general, the Justice Department from indicting a sitting president for constitutional reasons," Katyal said. "But an exception can be given."

Katyal repeated Wednesday that the rules "permit Mueller to depart from DOJ policy."

Referring to Deputy Attorney General Rod Rosentein, who is acting as attorney general in the context of the Russia investigation because Attorney General Jeff Sessions recused himself, Katyal said on MSNBC's "All In With Chris Hayes": "The way to do this is to ask the acting attorney general, so he does have a way forward."

Giuliani, meanwhile, had suggested on Wednesday that Mueller may not even interview Trump.

"I don't think they need an interview, particularly if the interview is only for the purpose of giving explanations again that the president has already given," he told NBC News.

Giuliani said Wednesday that Mueller's office has not responded to questions that Trump's team has about a possible interview. He said those inquiries included issues like: "Why do they need an interview, what kind of questions, when are you going to resolve the investigation, show us the authority."

On Thursday, Giuliani updated that to say that the special counsel's office had responded and that he was satisfied with the response which the former New York City mayor declined to discuss.

Earlier in the week, Giuliani told NBC News that he had spoken by phone with lawyers for the special counsel's office and that talks about a potential presidential interview were in a "holding pattern."

On Wednesday, he also called on Mueller ahead of the one-year mark of the investigation on Thursday to "get it over with."

The special counsel's office had no comment.