A newfound memo from Kenneth 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 they had gathered enough evidence to ask a grand jury to indict Mr Clinton, the memo shows.
Other prosecutors working for Mr Starr developed a draft indictment of Mr Clinton, which The Times has also requested be made public. The National Archives has not processed that file to determine whether it is exempt from disclosure under grand-jury secrecy rules.
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.
As Robert S Mueller III, the special counsel in the latest inquiry, investigates the Trump campaign’s dealings with Russia and whether President Donald Trump obstructed justice, the newly unearthed Starr office memo raises the possibility that Mr Mueller may have more options than most commentators have assumed. Here is an explanation of the debate and what the Starr office memo has to say.
Why do some argue presidents are immune?
Nothing in the Constitution or federal statutes says that sitting presidents are immune from prosecution, and no court has ruled that they have any such shield. But proponents of the theory that Mr Trump is nevertheless immune for now from indictment cited the Constitution’s “structural principles”, in the words of a memo written in September 1973 by Robert G Dixon Jr, then the head of the Justice Department’s Office of Legal Counsel.
This argument boils down to practicalities of governance: The stigma of being indicted and the burden of a trial would unduly interfere with a president’s ability to carry out his duties, preventing the executive branch “from accomplishing its constitutional functions” in a way that cannot “be justified by an overriding need”, Mr Dixon wrote.
In October 1973, Mr Nixon’s solicitor general, Robert Bork, submitted a court brief that similarly argued for an “inference” that the Constitution makes sitting presidents immune from indictment and trial.
What was the Starr office’s stance?
In laying out his case, Mr Rotunda played down arguments that permitting a president to be indicted would cripple the executive branch. Instead, he placed greater emphasis on immunity issues that the Nixon – and, later, Clinton – legal teams dismissed.
Among them, he noted that the Constitution’s speech-or-debate clause explicitly grants limited immunity to lawmakers for certain actions. “If the framers of our Constitution wanted to create a special immunity for the president,” he argued, “they could have written the relevant clause.”
He also wrote that the 25th Amendment, which allows for temporary replacement of a president who has become unable to carry out the duties of the office, created a mechanism that would keep the executive branch from becoming incapacitated if the president was on trial.
And he noted that if indictments had to wait until a president’s term was up, some crimes would become untriable – such as those where the statute of limitations had run out. That could happen for crimes that do not rise to an impeachable offense, he wrote, citing the example of a president who punches an irritating heckler.
“No one would suggest that the president should be removed from office simply because of that assault,” he wrote. “Yet the president has no right to assault hecklers. If there is no recourse against the president, if he cannot be prosecuted for violating the criminal laws, he will be above the law.”
What has the Supreme Court said?
The Supreme Court has never addressed the question of whether a sitting president can be indicted and tried. But in a landmark 1997 ruling, Clinton v Jones, it permitted a lawsuit against Mr Clinton for unofficial actions – accusations of misconduct before he became president – to proceed while he was in office.
In his 2000 memo, Mr Moss dismissed this ruling, emphasising that the burdens of being a criminal defendant were greater than the burdens of being sued by a private litigant. But in the Starr office memo, Mr Rotunda deemed the ruling far more significant for the criminal question.
“If public policy and the Constitution allow a private litigant to sue a sitting president for acts that are not part of the president’s official duties (and are outside the outer perimeter of those duties), and that is what Clinton v Jones squarely held,” he wrote, “then one would think that an indictment is constitutional because the public interest in criminal cases is greater.”
Could Mueller go where no prosecutor has before?
Even if Mr Mueller were to uncover sufficient evidence to indict Mr Trump, decide that the legal arguments in the Starr office memo were correct and conclude that he wanted to ask a grand jury for an indictment while Mr Trump is president – all big ifs – yet another uncertainty would loom: whether he must accept the Office of Legal Counsel’s analysis, even if he disagreed with it.
The Justice Department’s regulations give Mr Mueller, as a special counsel, greater autonomy than an ordinary prosecutor, but still say he must follow its “rules, regulations, procedures, practices and policies”.
They also permit Deputy Attorney General Rod Rosenstein to overrule Mr Mueller if he tries to take a step that Mr Rosenstein deems contrary to such practices.
There is no guiding precedent about whether Office of Legal Counsel memos would fall into that category, or if a special counsel is free to reach his own legal judgments.
But as Mr Mueller’s office investigates, the ambiguity about the rules could influence calculations in the Trump camp about how much to cooperate and how much to fight, said Renato Mariotti, a former federal prosecutor turned defence lawyer.
“I would be surprised if Mueller indicted the president for the same prudential reasons that swayed Starr,” Mr Mariotti said.
“But the spectre that he might do that could have an impact on things. If I were on the president’s team, I would say, ‘I don’t think it’s likely that he would, but it’s possible’, depending on what the facts are.”
– The New York Times