WASHINGTON — Special counsel Robert Mueller 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) 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."
During the final months of the Clinton administration 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 administration of former President Barack Obama — 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."
Giuliani also suggested to NBC News on Wednesday that Mueller may not need to interview Trump.
"I don't think they need an interview, particularly if the the interview is only for the purpose of giving explanations again that the president has already given," he said.
The president's lawyer said Mueller's office has not responded to questions that Trump's team has about a possible interview. Giuliani says those inquiries included questions such as, "Why do they need an interview, what kind of questions, when are you going to resolve the investigation, show us the authority."
Giuliani told NBC News on Tuesday that he has spoken by phone with lawyers for the special counsel's office and said talks about a potential presidential interview are in a "holding pattern."
On Wednesday, Giuliani also called on Mueller ahead of the one-year mark of the investigation on Thursday to "get it over with."
The special counsel had no comment on Giuliani's comments.