in the Executive Branch
By Joseph diGenova
president of the United States be indicted? The question is of more
than academic concern now. Every day brings fresh revelations of
potentially criminal conduct by Bill Clinton, Al Gore and their aides, in
matters ranging from Whitewater to Filegate. The latest scandal of
course, concerns whether Messrs. Clinton and Gore traduced campaign
fundraising laws in order to win re-election last year.
a phrase from Mr. Gore, there is no controlling legal authority on whether
the president can be indicted for criminal conduct before being impeached by
the House, tried by the Senate and removed from office (there's no question
a president can be indicted after being impeached). On its face, there
doesn't seem to be any reason why the president can't be held liable for
violating the law. One can roam through the criminal statutes - indeed
through the Constitution itself - and nowhere find an addendum stating that
a certain act is "unlawful, except when committed by the president of
the United States,"
some eminent legal scholars have taken the position that the president is
above the law. Robert Bork, when he was solicitor general under
President Nixon, declared on behalf of the Justice Department that a
president had to be impeached and removed from office before being indicted.
By contrast, the Justice Department declared that Vice President Spiro Agnew
could be criminally prosecuted, but the issue was never resolved because Mr.
Agnew pleaded guilty.
grand jury investigating Watergate was instructed by prosecutors not to
indict Nixon. Instead Attorney General John Mitchell was indicted while
Nixon was named as an unindicted co-conspirator. Nixon challenged the
grand jury's power even to do that. The Supreme Court first granted
his request for review of the grand jury's action but later refused to take
up the case. The court certainly never said anything suggesting that
the president was immune from criminal prosecution. Indeed, the
Justices ordered the White House tapes turned over to Judge John Sirica,
declaring that in criminal trials the Jury was entitled to "every man's
evidence." So there is no Supreme Court decision prohibiting the
indictment of a sitting president.
Nixon Justice Department took the view that the president couldn't be
indicted, the House Judiciary Committee, which draws up articles of
impeachment, had a different perspective. A memorandum of law drawn up
for the committee during Watergate states: "The Constitution Itself
provides that impeachment is no substitute for the ordinary process of
criminal law since its specifies that impeachment does not immunize the
officer from criminal liability for his wrongdoing."
Significantly, the committee did not say that such a criminal charge had to
await the president's removal from office.
possible to imagine many circumstances where such a delay would be
unthinkable. Let us suppose that one day a president, tired of the
constraints of security, secretly leaves the White House in a car and
strikes and kills a pedestrian. Suppose, further, the president was
drunk at the time. Does anyone argue that justice must await his
impeachment and removal? Impeachment might not even be warranted since
this is not the type of "high crime or misdemeanor" contemplated
by the drafters of the Constitution.
criminal misconduct would be harder to prove in Whitewater, Filegate or the
assorted other Clinton scandals. Neither Kenneth Starr nor any other
independent counsel should indict Mr. Clinton or anyone else unless he finds
clear evidence that would convince a jury that the defendant committed a
crime. But neither should any independent counsel be reluctant to
prosecute based on some vague concept of presidential immunity.
position, as previously noted, has no basis in law. Nor is it
particularly convincing as a matter of policy. Yes, the president is
the chief enforcer of the laws, so it would be somewhat odd for him in
effect to indict himself. But this is precisely why the independent
counsel was created. Independent counsels are not appointed by the
White House, so presumably they should be free to pursue criminal charges
against the president if his actions warrant it.
should underestimate the upheaval that a prosecution of the president would
cause. But we went through it once before, in Watergate, and survived.
The nation, in fact, could conceivably benefit from the indictment of a
president. It would teach the valuable civics lesson that no one is
above the law. As an appeals court told Mr. Clinton in the Paula Jones
case, the Founders created a presidency, not a monarchy.