Former Special Counsels Thought Presidents Can Be Indicted in Office

Former Special Counsels Thought Presidents Can Be Indicted in Office December 18, 2018

This article is almost a year and a half old, but is newly relevant as the Mueller investigation heats up. Last year, the National Archives released documents from the Ken Starr investigation that argued that sitting presidents can, contrary to the opinion of the DOJ’s Office of Legal Counsel, be criminally 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.

There is nothing in the Constitution that states that the president has such immunity. The argument for it is based primarily on pragmatic concerns that if the president were charged with a crime, it would distract him from his ability to do the duties of the office. But the courts have long held that the president can be sued civilly, so what’s really the practical difference between the two?

The co-host of my podcast, constitutional law professor Dan Ray, argued on the most recent show that not only does Mueller have the constitutional authority to charge Trump criminally, he has a duty to do so. I hope to revisit that argument in more detail soon because it wasn’t something we had planned to talk about and we didn’t really get too far into it.

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