Penn State / Flickr mueller sitting talking...
Penn State / Flickr

With Donald Trump focused on the legality of pardons for himself and selected minions, and spewing a torrent of early morning official White House statements in 140-character bits amid new revelations about Russian contacts, legal authorities are again wondering whether a sitting president is immune from prosecution. The conventional reasoning is that immunity reigns.

However, digging via the Freedom of Information Act byThe New York Times has uncovered a buried memorandum that says it doesn’t. The source? The execrable Kenneth Starr, who sought to bury President Bill Clinton, contributing to the vicious ultra-partisanship that has only grown in the past two decades. Starr, speaking with apparent contrition last year, claims Clinton has redeemed himself in his post-presidential years. Regardless of the source, the memo raises new possibilities. As Charlie Savage reports

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.

He points out that Watergate special counsel Leon Jaworski also had determined in 1974 that Richard Nixon could be indicted, saying so in a memo and later in a court brief. Neither time did those views get tested in court since Nixon resigned in the face of impeachment and Clinton was acquitted by the Senate after a five-week impeachment trial.

The Jaworksi memo and brief and the Starr memo aren’t the only legal explorations of the subject, however. As Savage points out, In 1973, a brief by Solicitor General Robert H. Bork inferred that the Constitution makes presidents immune from indictment and trial. This was backed up decades later in a 2000 memo by Randolph D. Moss, the head of the Office of Legal Counsel under Clinton.

These conflicting views have never been tested by the Supreme Court, or any of the lower courts.

What the Starr memo gives credence to is the possibility that Robert Mueller III, the former FBI director who is now special counsel, may have more options than is generally thought to be the case when it comes to action he might take when he has completed his inquiry into Trump’s campaign dealings with Russia and whether he obstructed justice. If Mueller found enough evidence to indict and consequently chose to accept the Jaworski and Starr point of view, he would still have to ponder the impact of the anything-but-small political fallout from taking the momentous step of indicting a sitting president for the first time in the history of the Republic. 

All this assumes, of course, that Donald J. Trump won’t get up one of these mornings and tweet to the world that he has fired Mueller. 

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This is a Creative Commons article. The original version of this article appeared here.


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