Investigation could test Constitution Criminal charges against Clinton would spur fight over presidential rights

January 22, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Two centuries after the Constitution was adopted, the nation still does not know whether a president may be charged with crime while in office. That issue looms as an independent counsel begins a broader investigation of President Clinton.

It is was far from clear yesterday that the independent counsel, Kenneth W. Starr, will file criminal charges against the president after looking into an alleged sexual affair with a White House intern and allegations that Clinton tried to persuade her to lie about it.

But if there eventually are formal charges, constitutional scholars agreed yesterday, Clinton and his lawyers could test a series of basic issues -- still unsettled -- about the legal accountability of presidents.

The Supreme Court, those scholars noted, has never decided whether a president in office is subject to criminal prosecution and thus has never ruled on whether impeachment and removal by Congress must precede any criminal case.

And the court has never decided whether a president could simply order an independent prosecutor not to bring charges.

If there is to be a final answer by the courts to such questions, the scholars agreed, it won't come for a few years. In the meantime, they suggested, the nation may have to withstand a constitutional conflict shaking the stability of the presidency.

Susan Low Bloch, a Georgetown University law professor, suggests that any such constitutional fight could be similar to the one that led to President Richard M. Nixon's resignation in 1974. Starr's new inquiry, Bloch said, might take "six months or more," and then, if an indictment emerged, Clinton "would fight it."

Noting that Clinton waged a three-year constitutional challenge to the sexual misconduct civil lawsuit filed by Paula Corbin Jones, Bloch said: "I assume it would be about the same" this time if a new challenge is raised. Such a prolonged battle, she noted, would take up Clinton's remaining years in office.

In the Watergate scandal, Nixon tried to raise the core issue in such a battle: Must impeachment come first, before any criminal case could go forward?

The Supreme Court never reached that issue in deciding to order Nixon to turn over damaging audiotapes to the Watergate special prosecutor. That ruling led quickly to Nixon's resignation, which averted prosecution or impeachment.

As of now, Clinton is not threatening a constitutional fight, and he did not appear yesterday to be expecting to be charged with a crime. Denying the charges, he said several times that he will cooperate with Starr's widened inquiry into charges of sexual misconduct with a young White House intern and allegations of a cover-up attempt.

Rep. Henry J. Hyde, an Illinois Republican who heads the House Judiciary Committee, said he would await the results of Starr's investigation. But, he added, "if he [Starr] verifies the authenticity of these charges, impeachment might very well be an option."

Once Starr finishes his investigation, Judiciary Committee aides noted, the law requires him to report to Congress, whether or not he plans to bring charges. The contents of that report could then lead the House to decide whether to begin an impeachment inquiry.

That schedule made it appear that criminal charges by Starr, if any are made, could confront Clinton and his advisers with the choice of whether to act to shut down Starr's investigation or to raise a constitutional challenge to any criminal prosecution while the president remains in office.

Akhil Reed Amar, a Yale University law professor, argues that presidents can be prosecuted for crime only after they leave office, by impeachment or otherwise.

"If the president wants to take the political heat, he can always stop the prosecution," Amar said yesterday.

A court battle, Amar said, would ensue over that maneuver.

Eric M. Freedman, a Hofstra University law professor who believes that sitting presidents can be prosecuted for crime without being impeached first, said Clinton "would be in an extremely weak posture" if he tried to mount a constitutional attack on criminal charges.

"I would be extremely skeptical of its success," Freedman added.

Terry Eastland, a presidential scholar at the Ethics and Public Policy Center in Washington, argues that "a sitting president may be prosecuted but only to the extent he allows himself to be," because he retains the authority to cut off an independent counsel's authority.

Such an order, however, could set the stage for impeachment on a theory that the president had abused the powers of the office, Eastland suggests.

Starr, in pursuing his new line of inquiry, faces other legal questions, according to legal analysts.

Among them is whether the former intern, Monica Lewinsky, can use her right to privacy to avoid questions about any relationship she had with Clinton.

Other analysts suggested yesterday that, if ordered to testify before a grand jury, the young woman might refuse to testify, relying upon her Fifth Amendment right not to incriminate herself.

There is also a question -- one the Supreme Court appears ready to decide during its current term -- as to whether the president or the young woman can be prosecuted for perjury if they denied under oath that they had had a sexual relationship.

Pub Date: 1/22/98

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