By Charles Laffiteau

Since the mid-term elections are just around the corner, this time I’m going to be scatter-shooting in my discussion of some of Trump’s legal issues in the lead up to the big day.

But before I begin, I want to update you on what happened to my nephew Huthaifa. Despite all of my considerable efforts, and the assistance of my congressman and a number of other community leaders, the US Consulate in Khartoum refused to even interview him for his student visa, much less grant our request for a visa waiver.

Even though the Supreme Court upheld the Trump travel ban because the State Department said those who were not security threats could get a waiver, such waivers are no longer being granted. In other words, the travel ban waiver programme was an elaborate sham designed to appease the sensibilities of the Supreme Court.

In fact, this past June, US solicitor general Noel Francisco made a point of telling the Supreme Court that if citizens of affected countries met the criteria for the State Department’s travel ban visa waiver, they would not be denied a visa to enter the United States. Trump’s third travel ban proclamation states that waivers can be granted for a variety of circumstances, including for “significant business or professional obligations”.

But a former consular officer, Christopher Richardson, told another federal court that “there really is no waiver process” and that consular officers had been told to find as few people as possible eligible for waivers.

So it’s not a surprise no waivers have been approved since the 26 June Supreme Court decision upholding Trump’s third travel ban. Furthermore, so far this year 98 per cent of all travel ban visa waiver applicants have been rejected — and of the two per cent that have been approved, most of them are still in administrative limbo.

Supreme Court Justice Sonia Sotomayor noted in her dissenting opinion that because “waivers under the programme are vanishingly rare” and because many deserving applicants had been denied waivers “there’s reason to suspect that the proclamation’s waiver programme is nothing more than a sham.” However, I suppose President Trump and his supporters are probably sleeping better now, knowing that young boys like Huthaifa will not be able to enter the United States to “commit, aid, or support acts of terrorism, or otherwise pose a safety threat.”

On a different legal front, several friends have asked me if I believe President Trump will ever be prosecuted, convicted or sent to jail for some of his alleged misdeeds. The short answer is no — not so long as he occupies the Oval Office as president of the United States.

While the president is not above the law, there is a long-standing view from within the US Department of Justice that the office is immune from criminal prosecution. The reasoning that underlies this perspective is that a criminal trial would require presidents to spend too much time defending themselves in court, which in turn “would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions”.

Mind you, there is nothing in our nation’s constitution, nor is there any federal law, that prohibits the indictment or criminal prosecution of a president while they are in office. I also don’t buy the argument that a criminal trial would cripple the executive branch. President Nixon’s lawyers tried to make this argument during the Watergate hearings but it was never argued before the Supreme Court, because President Nixon resigned before he could be indicted for his role in that scandal.

Regardless of the pros and cons of these legal arguments, special prosecutor Robert Mueller has already stated that he intends to abide by the Justice Department policy of not indicting a sitting president. He is also doing so largely because he ultimately serves at the pleasure of the president.

But just because I don’t believe Mueller will try to indict or prosecute President Trump while he resides in the White House, that doesn’t mean Trump is still out of the woods when he leaves office. Mueller may already have or could eventually seek an indictment under seal, which would remain secret until after Trump leaves The White House for good. For now, however, the ultimate decision maker here is the US Congress.

After he leaves office, President Trump immediately becomes subject to federal and state criminal prosecutions. However, he would also be open to criminal prosecution if congress impeached him. So long as the Republican Party controls congress, Trump doesn’t have to worry about that. But after Democrats regain control of the House of Representatives on 6 November, as is likely, I expect them to launch investigations into Trump’s finances that might lead to impeachment. Although I don’t foresee Democrats also taking over the Senate, weakening the Republicans’ control of Congress will spell trouble for Trump in 2019 and 2020.

Charles Laffiteau is a US Republican from Dallas, Texas pursuing a career in public service. He previously lectured on Contemporary US Business & Society at DCU from 2009-2011 and pursued a PhD in Public Policy and Political Economy.