Tuesday on Fox News Channel’s “Hannity,” conservative talker Mark Levin questioned the authority of special counsel Robert to investigation President Donald Trump for a criminal matter, specifically obstruction of justice.
According to Levin, it has been long-standing Department of Justice policy not to pursue criminal charges against a sitting president because such a move could throw off the balance of the separation of powers set by the U.S. Constitution.
Instead of criminal charges, Levin argued Congress had the impeachment process as a provision to remove a president regardless of what an independent special counsel might find in an investigation.
Partial transcript as follows:
HANNITY: Here with reaction, the author of a soon-to-be best-selling book — look at her right there — “Rediscovering Americanism and the Tyranny of Progressivism,” I call him “the great one,” Mark Levin. Love the cover. You’re going to be on next Monday. We’re going to talk all about the book.
MARK LEVIN, RADIO TALK SHOW HOST: Right.
HANNITY: Not tonight. Let’s talk about what you found here. This is profound to me.
LEVIN: Well, let’s talk about this because we’ve had a debate the last several weeks as a result of the Jim Comey illegal leak through his law professor buddy to The New York Times that 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. That aside, this has been the debate for weeks, obstructing justice (INAUDIBLE) Well, will Mueller investigate him? Mueller has investigated — that’s not the question. That’s media insanity.
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 and a 1973 memorandum and an October memorandum under the Clinton administration that you must not, cannot indict a sitting president! Not that this president would be, that’s not that my point. As a matter of constitutional interpretation for 44 years, that’s been the position of the Department of Justice.
We’ve had law professors, homeless people, would-be law professors all over TV and radio talking about obstruction of justice. We’ve had media types talking about it. We’ve had members of Congress talking about it. It doesn’t matter! The official position of the Justice Department is we don’t charge a sitting president with a crime.
Now, you don’t have to trust me. Here’s part of the memo. This memo was written October 16th, 2000, and incorporates writings from the 1973 memorandum. The OLC, Office of Legal Counsel, which advises the president and the attorney general on constitutional issues — at one time, it was headed by Bill — William Rehnquist, who’d been chief justice, at one time Antonin Scalia. That’s how important this office is.
The OLC memorandum in 1973 proceeded to this issue, examining whether criminal proceedings against a sitting president should be barred by the doctrine of separation of powers. What they concluded is it is barred by the doctrine of separation of powers!
And here’s the reason. There’s only one person who runs the executive branch, who’s the commander-in-chief, the president of the United States! It’s not like Congress. We have 40 — 435 members of the House or the Senate, where you have 100 members of the Senate, or the courts, where there’s a thousand federal judges and so forth.
The president is it! One national election, one president, specific duties under article 1 of the Constitution of the United States! And what they explained in the two memoranda is this. 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, 12 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 separate system for him or her called the impeachment process. We’re not going to get into that now.
Now, what they’ve said is that it’s quite clear that if a president of the United States has to spend time defending himself, if a president has to expend time going to trial, being deposed, if a president has to spend time, you know, protecting himself, then it — 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! Now, why does that matter? Because Mr. Mueller is not an independent agent! They can call I mean independent, special prosecutor. They can call him a kumquat! It doesn’t much matter.
The fact of the matter is the rules and regulations that apply at the Department of Justice to all prosecutors apply to Mr. Mueller! The fact that Jim Comey leaked his memo, tried to push an obstruction of justice scenario and pressed for a special counsel, which he got, his dear, long- time good friend, Robert Mueller, doesn’t change the fact…
HANNITY: Mark, let me get to one question.
LEVIN: … that the department of — yes?
HANNITY: And I don’t want to interrupt your thought. This is too deep. This is what you’re great at. And by the way, “Rediscovering Americanism” — we’ll get into that Monday.
And this is important constitutionally. I keep talking about five forces against this president, and what I call a soft coup. You’ve got the deep state, the nonstop leaking, and then of course, you see all these people appointed by Mueller. You’ve got a media, 11 months of nonstop lying, conspiracy theories, Democrats that never accepted the election results. Weak Republicans — they never liked Trump, and then never-Trumpers, they want some relevancy and to say, I told you so.
But I’ve never seen the forces align under a banner of conspiracy, lies, hiring Clinton attorneys to be part of Mueller’s team — is this the real danger? Last question.
LEVIN: Well, yes, and I’ve been calling it a silent coup now for some time. What’s going on here is the…
HANNITY: Great minds think alike. Thank me.
LEVIN: Yes, they do. They do. What I’ve been calling this is the criminalization of politics, and this has been going on for some time with the Democrats. They tried against every single Republican president.
How is it that after eight years or during eight years of Obama, we have the IRS matter, we have Fast and Furious, we have all these different issues going on, not once was there a special counsel. And three months into his presidency, four months into his presidency, on bogus issue after bogus issue after bogus issue…
HANNITY: And now they move on.
LEVIN: … now we have a special counsel.
HANNITY: No Russia…
LEVIN: I just want to…
HANNITY: No Russia, collusion so we’ll move on to obstruction. Then we’ll move on to…
(CROSSTALK)
LEVIN: I want to be clear! 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!
And for the liberal lawyers and media types who are going to debate the memo, they can debate it all they want. That’s the Department of Justice policy, whether they like it or not!
HANNITY: All right, Mark, very revealing. Monday night, one week from yesterday, you’re going to be on this program. I want to talk about your new book. Mark, great to see you, good find.
LEVIN: God bless.
Follow Jeff Poor on Twitter @jeff_poor
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