You can indict a ham sandwich, but not a sitting president.

According to Rudy Giuliani, Special Counsel Robert Mueller has assured President Trump’s legal team that he will follow longstanding DOJ guidance holding that a U.S. president is off limits for indictment. Mueller has no choice, the Trump lawyer said Wednesday.  

The special counsel apparently is relying on guidance from nearly two decades ago, when the Clinton administration reviewed 1973 guidance that “the indictment and criminal prosecution of a sitting President would unduly interfere” with executive branch duties.

The House of Representatives, as it did during the Clinton administration, can bring misconduct charges against a president through the process of impeachment. That is not in question. 

But then-Assistant Attorney General Randolph D. Moss, with the Office of Legal Counsel, determined in his October 2000 memo: “Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.”

There are opposing points of view on this. The New York Times last summer unearthed a 1998 memo from Ken Starr’s independent counsel investigation that determined a sitting president could be indicted.

But the later 2000 memo, from the Justice Department itself, held firm that this is not the case.

Read the memo here: 

Fox News’ John Roberts contributed to this report.