Clinton-era memo adds layer to idea of a Trump indictment
WASHINGTON — A newfound memo from Kenneth W. Starr’s independent counsel investigation into President Bill Clinton sheds fresh light on a constitutional puzzle 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.”
Starr assigned Ronald Rotunda, a prominent conservative professor of constitutional law and ethics whom 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 Clinton, the memo shows.
Other prosecutors working for Starr developed a draft indictment of 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 Jaworski and Starr let congressional impeachment proceedings play out and did not try to indict the presidents while they remained in office. Starr, who had decided he could indict Clinton, said in a recent interview 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 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 sitting presidents are immune from prosecution, and no court has ruled that they have any such shield. But proponents of the theory that 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,” Dixon wrote.
In October 1973, Nixon’s solicitor general, Robert H. Bork, submitted a court brief that similarly argued for an “inference” that the Constitution makes sitting presidents immune from indictment and trial. And in 2000, Randolph D. Moss, the head of the Office of Legal Counsel under Clinton, reviewed the Justice Department’s 1973 opinions and reaffirmed their conclusion.
› What was the Starr office’s stance?
In laying out his case, Rotunda played down arguments that permitting a president to be indicted would cripple the executive branch. Instead, he placed greater emphasis on immunity issues the Nixon — and, later, Clinton — legal teams dismissed.
Among them, he noted the Constitution’s speechor-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.
› Could Mueller go where no prosecutor has before?
Even if Mueller were to uncover sufficient evidence to indict Trump, decide the legal arguments in the Starr office memo were correct and conclude he wanted to ask a grand jury for an indictment while 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 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 J. Rosenstein to overrule Mueller if he tries to take a step that 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 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 defense lawyer.
“I would be surprised if Mueller indicted the president for the same prudential reasons that swayed Starr,” Mariotti said. “But the specter 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.”