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Can the President Be Indicted? A Long-Hidden Legal Memo Says Yes

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Charlie Savage reports in the NY Times:

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.

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 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. . .

Continue reading.

Written by LeisureGuy

22 July 2017 at 7:04 pm

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