It has long been believed that the Constitution prevents the president from being charged with a crime while in office. The Constitution does not address this directly, but the consensus opinion has long been that it is prevented by the structure of the Constitution’s separation of powers.
But is that true? In a very interesting development, the New York Times got its hands on a memo from the Ken Starr investigation into President Clinton. He brought in a conservative law professor to consult on the matter and she concluded that the president could, in fact, be criminally indicted while in office as long as the charges were not related to their duties as president (allowing criminal prosecution for carrying out the president’s duties would be problematic for a number of reasons; this is why public officials have some form of qualified immunity at every level).
A newfound memo from Kenneth W. Starr’s independent counsel investigation into President Bill Clinton sheds fresh light on a constitutional puzzle that is taking on mounting significance amid the Trump-Russia inquiry: Can a sitting president be indicted?
The 56-page memo, locked in the National Archives for nearly two decades and obtained by The New York Times under the Freedom of Information Act, amounts to the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office.“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr office memo concludes. “In this country, no one, even President Clinton, is above the law.”
Mr. Starr assigned Ronald Rotunda, a prominent conservative professor of constitutional law and ethics whom Mr. Starr hired as a consultant on his legal team, to write the memo in spring 1998 after deputies advised him that they had gathered enough evidence to ask a grand jury to indict Mr. Clinton, the memo shows.
In 1974, the Watergate special counsel, Leon Jaworski, had also received a memo from his staff saying he could indict the president, in that instance Richard M. Nixon, while he was in office, and later made that case in a court brief. Those documents, however, explore the topic significantly less extensively than the Starr office memo.
In the end, both Mr. Jaworski and Mr. Starr let congressional impeachment proceedings play out and did not try to indict the presidents while they remained in office. Mr. Starr, who had decided he could indict Mr. Clinton, said in a recent interview that he had concluded the more prudent and appropriate course was simply referring the matter to Congress for potential impeachment.
The courts have never ruled directly on this matter. I suspect that they would reject this argument, or even reject hearing such a case, and would dismiss it as a political question that the courts should stay away from. But if Mueller did decide to indict Trump at some point while he’s still in office, that would make for a very fascinating series of court cases. I think it’s very, very unlikely to happen, but it would be a lot of fun to watch, and would provide an opportunity for a good civics lesson.