Indictments in the Executive Branch

By Joseph diGenova

Wall Street Journal, March 6, 1997

Can the 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.

To borrow 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,"

Nevertheless 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.

Then the 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.

While the 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.

It's 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.

Obviously 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.

The Bork 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.

Nobody 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.