Idea of indicting Trump might not pass legal test

Justice Dept., experts hold different views

WASHINGTON – President Donald Trump may be following his predecessors, Richard Nixon and Bill Clinton, into the world of criminal law. The question both of them faced – and which Trump may confront – is whether a president can be indicted while in office.

The Constitution doesn’t say. Neither has Congress spoken by statute. The closest the Supreme Court has come was a narrow ruling in 1997 that a sexual harassment lawsuit against Clinton could proceed.

That has left the Justice Department as arbiter on the question of whether a sitting president can be charged with a crime. No, it said, first in 1973 and again in 2000.

But some authorities on the separation of powers say: Not so fast.

Now that Trump has been implicated by his personal lawyer, Michael Cohen, in a possible violation of campaign-finance laws, the question of his criminal culpability has resurfaced.

Question: Can a president be indicted?

Answer: The Justice Department has said no. The main reason: A criminal trial would interfere with the president’s duties under the Constitution.

Q: What happened with Nixon? A: Accused in the cover-up of the 1972 break-in at Democratic National Committee headquarters in Washington’s Watergate office complex, Nixon was named as an unindicted co-conspirator by special prosecutor Leon Jaworski, who refused the grand jury’s unanimous recommendation to indict the president. Nixon resigned in August 1974 amid impeachment proceedings and later was pardoned by President Gerald Ford, lest he face criminal proceedings.

Congress passed a law four years later establishing the office of independent counsel.

Q: What about Agnew?

A: The same protection from indictment in office did not extend to Nixon’s vice president, Spiro Agnew, who was investigated in 1973 for tax fraud and corruption from his days in Maryland politics. Agnew at first argued he could not be indicted but eventually offered his resignation in exchange for a plea bargain.

Q: What happened with Clinton? A: The best-known independent counsel was Ken Starr, who expanded his original probe into Clinton’s Whitewater land deal in Arkansas to include the president’s affair with White House intern Monica Lewinsky. A memorandum commissioned by Starr’s office contended in 1998 that he could indict and convict the president. But two years later, the Justice Department reaffirmed its opinion that indictment was out of bounds. Clinton was impeached by the House but acquitted by the Senate.

Q: What is the current rule?

A: The 2000 memo is the latest official opinion, but it’s not ironclad. Trump’s counsel Rudy Giuliani claimed earlier this year that Mueller’s office has pledged to abide by it, meaning no indictment is forthcoming.

But under Justice Department regulations written for future special counsels in 1999, Mueller could ask acting attorney general Rod Rosenstein for the authority to indict Trump.

Q: Would it wind up in court?

A: Any effort to indict the president could end at the Supreme Court, making Trump’s nomination of federal appeals court Judge Brett Kavanaugh potentially significant.

Kavanaugh earned his stripes in Republican circles by pursuing Clinton as a member of Starr’s staff. But in 2009, he wrote that he had changed his mind and that presidents should be spared criminal investigation while in office.