Last week Robert Mueller testified that, while federal authorities can't indict a sitting president under the OLC guidelines, Trump could be indicted after he leaves office. But the reality is there is a well-established norm in America against pursuing criminal charges against former leaders and their close officers and advisers. For good reason too. The norm helps facilitate the peaceful transition of power in the U.S. A former leader is much less likely to turn over the reigns of power when the other party wins an election if s/he expects to be put in jail as soon as the other side gets control of the Justice Department. While no one wants to say that the ex-Presidents have immunity from criminal acts committed before leaving office, there is a widespread reluctance to actual pursue charges which means there is a de facto limited immunity. We all know a former President will not be charged unless the crime is really really seriou. And even in cases where the crime is really serious there is a haze of ambiguity around what type of offenses would actually result in charges. American was able to dodge an actual decision on this issue when Ford pardoned Nixon, and so the strong presumption against charging a former president and the ambiguity of what kind of offenses can be charged persists.
That presumption that former Presidents and their close confidants should not be charged will go out the window if the Trump administration starts going after Obama officials. The Trumpies are not smart enough to realize this, but some day they will be out of power. If they are stupid enough to go after Hillary Clinton or Obama, the Democrats will be more determined than ever to hold Trump and his enablers accountable for their actions once they no longer control the Justice Department.
