Fox News' senior judicial analyst Judge Andrew Napolitano told host Shepard Smith Monday that there's "ample evidence" to indict President Trump, the only question is if they really want to do it. Given the evidence, he said, the Department of Justice really has two options: either decline to indict or indict in secret.
The discussion began with Shepard Smith noting that Napolitano has asserted previously that, contrary to Rudy Giuliani's emphatic claims Monday, Trump will talk with Special Counsel Robert Mueller, it's just a matter of when and how, whether that's one-on-one "with a lawyer whispering in the president's ear" or via grand jury subpoena.
"You think that a grand jury subpoena is a real thing that might come for President Trump?" Smith asked.
"Yes, I do," said Napolitano. "I think that Bob Mueller knows that he needs to lock the president in to a version of events before he takes the next step — whatever the next step is, whether it's indictment or whether it's a referral for impeachment."
"You really think that Mueller might indict the president?" Smith asked.
"Well, last week in federal district court here in New York City, a federal judge at the end of Michael Cohen's sentencing said the president orchestrated and paid for this crime," Napolitano replied. "He was referring to one of the nine to which Michael Cohen had pleaded guilty," he added, referencing Cohen's campaign finance violation plea.
"You're saying the president's an unindicted co-conspirator?" asked Smith, apparently surprised.
"Yes," said Napolitano. "I'm also saying that there’s ample evidence — this, this doesn’t require too much analysis — to indict the president. The question is do they want to do it."
Napolitano then laid out the two options he says are on the table, based on three previous opinions on the indictment of a sitting president.
"The DOJ has three opinions in this. Two say you can’t indict a sitting president, one says you can. But all three address the problem of what do you do when the statute of limitations is about to expire. All three agree in that circumstance you indict in secret, keep the indictment sealed, and release it the day he gets out of office. You can't let a person go scot-free because they happen to be in the White House."
"So he may be an already indicted co-conspirator," said Smith.
"That I don't know about," said Napolitano, "but it could be because we don't know what's been sealed. We don't know what he's been told; we don't know what Rudy Giuliani's been told."
Concerning Giuliani, Napolitano suggested that his assertion that Trump would sit for a interview with Mueller "over my dead body" was likely an attempt to effectively negotiate publicly with Mueller about a potential subpoena.
You can watch the exchange over at Mediaite.