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Michael Avenatti’s Case For Indicting The President Is Factless Hogwash


In The New York Times on Sept. 13, Michael Avenatti made the case for indicting President Trump. There are only two flaws with Avenatti’s argument: It has no basis in fact, and it has no basis in law.

First, let us recall who Avenatti is. He is the attorney for Stormy Daniels and Karen McDougal, two of the least trusted names in America who stand to professionally and financially benefit from making salacious allegations against the president. He is also a media hound who has a predilection for involvement in celebrity cases.

Despite his lucrative legal ventures, Avenatti has not been without legal and financial troubles. Avenatti’s law firm has been forced into bankruptcy on at least two occasions, and he has been subject to multiple accusations of financial shortcomings in his professional dealings.

So, naturally, one would expect that The New York Times would be especially careful in accepting an article dealing with a matter in which Avenatti was directly involved. Think again.

The Absence of Supporting Facts

In order to prosecute anyone in the United States, much less the president, there must be some evidence that a crime has been committed. Avenatti has none.

In his article, all he says about any factual basis for indicting the president is, “there are many indications that there is [sufficient evidence to support an indictment of President Trump]– the special counsel, Robert Mueller, who is investigating possible Russian interference in the 2016 election, and prosecutors from the United States Attorney’s Office for the Southern District of New York, who are investigating payments to my clients, Stormy Daniels, and Karen McDougal, should present their evidence to grand juries.”

That’s it. That’s all he’s got: A wish. A desire. Never mind that the special prosecutor has admitted that he has yet to find any evidence of collusion. And never mind that the payments made to Avenatti’s client have a very high bar to clear before rising to the level of criminality.

Avenatti utterly ignores these obstacles. They apppear to present no difficulties to either him or The New York Times.

The Absence of Supporting Law

Under any other circumstances, I would need to conclude my commentary since the case can move no further with no factual basis, except that Avenatti is allowed to continue.

Having established his factless case for prosecuting the president, Avenatti then turns to the matters in law. Here, he makes the argument that the president of the United States, the leader of the free world, should be prosecuted so the Supreme Court may rule on the constitutionality of whether the president is immune to prosecution. (I kid you not.)

I submit that Avenatti couldn’t care a hare’s foot as to the Supreme Court’s opinion on the president’s immunity from prosecution. In my opinion, his only interest lies in moving his case forward and staying in the spotlight. Regardless, resolving an academic argument regarding the balance of power between the executive and the judiciary is hardly a sufficient reason to prosecute the president, and The New York Times should know that.

More to the point, Avenatti makes no compelling case that the president is even subject to prosecution by any method other than impeachment. Article I, Section 2, Clause 5, expressly states, “The House of Representatives . . . shall have the sole Power of Impeachment.” Further, Article I, Section 3, Clause 6 of the U.S. Constitution makes it perfectly clear that the power to try the president lies with the Senate:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Finally, and most directly on point, Article II, Section 4 states, “The President, Vice President and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

With these three phrases, the Framers created a system by which a miscreant president can be found subject to trial, tried, and convicted. True, the Framers did not use the word nor address the possibility of prosecution, but this does not open the door to Avenatti’s argument. It completely closes it.

Let us recall that the federal government (the national government, to the Framers) is a government of enumerated powers. If it is not in the Constitution, then it was not a power for the national government to employ. Thus, the fact that prosecuting or indicting the president is nowhere mentioned in the Constitution serves as a pretty stark repudiation of the remedy for the highest-ranking official of the land.

Moreover, a close reading of Article II, Section IV, pretty much lays to rest any foundation for a different interpretation, “The President. . . shall be removed from Office on Impeachment of, and Conviction…” That’s it. That’s the only remedy available.

If the president were to be convicted as a result of his impeachment, then removed from office under the legislature’s judiciary powers, he or she would no longer be president and would, at that point, be subject to criminal prosecution. That’s when a jurisdictional officer becomes empowered to prosecute a former president.

Avenatti’s Reading of the Clinton Case Is Way Off

It seems pretty clear-cut that the House of Representatives is the president’s grand jury and the Senate his judge and petit jury, but Avenatti, in his fallacy, argues to the contrary using a case involving none other than Bill Clinton, Clinton v. Jones. The first error Avenatti makes in deploying this case is conflating the rules applying to civil litigation with those involving a criminal case.

Clinton was a civil lawsuit brought against the president of the United States, Bill Clinton, by Paula Jones for damages involving her alleged sexual harassment. In it the president argued that he was not subject to litigation because, in carrying out the duties of the Office of the Presidency, he was too busy to properly defend himself.

It would also be inappropriate, his legal team argued, for the president to be subjected to depositions and other inquiries in mounting his defense, as such activities would inevitably interfere with his abilities to carry out his duties as president. The Supreme Court disagreed, however, holding that no one, even the president, is above the law, and the trial was allowed to move forward.

But the prosecution of a president is a criminal matter for which the ruling in Clinton would not apply, nor would the conclusion that no man is above the law, because even in arguing that the president is immune to prosecution, he would still be subject to the Constitution of the United States and the remedies divined by the Framers of that foundational document.

In “Men In Black,” Agent Kevin Brown, the character played by Tommy Lee Jones, picked up a copy of three curbside tabloids, calling them “the best investigative reporting on the planet. Go ahead; look at The New York Times if you want to. They get lucky sometimes.” Although he was right in principle, he gave The New York Times too much credit.