Many law scholars doubt a president can be tried for a crime while in office

Question arises because of reports Starr believes he can indict Clinton

February 03, 1999|By Susan Baer | Susan Baer,SUN NATIONAL STAFF

WASHINGTON -- With little constitutional text to guide him and mainstream legal scholarship opposing him, Kenneth W. Starr would face an uphill battle if he decides to bring a criminal case against President Clinton while the president is still in office.

The independent counsel has reportedly concluded that he has constitutional authority to bring a criminal indictment against Clinton before the president leaves office.

Ronald D. Rotunda, one of Starr's legal consultants, believes the Supreme Court's 1997 decision allowing the Paula Corbin Jones civil suit to proceed set a precedent that would permit the indictment, trial and conviction of a sitting president for a federal crime.

But many legal scholars disagree. They say the court's Jones decision involved a civil suit brought by an individual and is far different from a criminal case brought by the government.

The Constitution, those academics argue, provides for the prosecution of a sitting president via the impeachment process.

"There is one grand jury in the United States to which the president is accountable," says Akhil Reed Amar, a Yale University professor of constitutional law. "It's called the House of Representatives. There's one trial court to which he's accountable. It's called the Senate of the United States."

Uncharted territory

Everyone agrees Starr would be wandering into uncharted territory if he brings a criminal case against Clinton -- a case that would likely take so long that it would not be resolved until the president is out of office.

The president's challenges to the Jones case, for example, took three years to produce a ruling by the Supreme Court.

"No precedent clearly resolves this," says Thomas Sargentich, a law professor at American University. "Everyone is trying to draw inferences from the structure and text of the Constitution."

Leon Jaworski, the Watergate special prosecutor whose grand jury named President Richard M. Nixon as an unindicted co-conspirator a quarter-century ago, reminded the Supreme Court of the lack of constitutional guidance on the subject at the time.

"It is an open and substantial question whether an incumbent president is subject to indictment," the prosecutor said then.

U.S. District Judge John J. Sirica, who handled the Watergate case, praised Jaworski for not asking the grand jury to indict Nixon.

Constitutional crisis avoided

"Bringing charges directly against a sitting president," Sirica said later, "could have produced a great constitutional crisis and could have totally obscured the issue of the president's conduct."

Many who argue that the Constitution bars the indictment of a sitting president note the uniqueness of the presidency. They contend that criminal prosecution would paralyze the office.

Noting that the executive branch is the only one of the three branches of government with power lodged in one individual, Sargentich says, "You can indict, even throw into prison, a member of Congress or a federal judge and not disable the constitutional structure."

Such arguments against indicting a sitting president have been made by liberal and conservative analysts alike.

When Robert H. Bork, then U.S. solicitor general, was asked in 1973 for an opinion on the constitutionality of indicting Vice President Spiro T. Agnew, the conservative scholar concluded that vice presidents could be indicted but that presidents could not.

Agreeing with him was a liberal constitutional scholar and impeachment expert, Charles L. Black Jr., a Yale University law professor.

Susan Low Bloch, a Georgetown University law professor, said she has taken cues from the "balancing formula" established by the Supreme Court when Jaworski sought the secret White House tape recordings from Nixon -- the subpoena that forced Nixon's hand and led him to resign before he could be impeached by the House.

Nixon tapes ruling

In that case, the justices decided unanimously that the need for the tapes by the criminal justice process outweighed the president's claims of executive privilege. But "the balance tips in favor of making the criminal justice process wait," Bloch says, when measured against the effect that a prosecution of the president would have on the government.

Bloch adds, however: "It's not a slam-dunk. I come out one way; I would admit reasonable people could disagree."

In fact, Bloch concedes, the opposing viewpoint may have been strengthened by the court's decision in the Jones case in which it declared that a sitting president has no immunity to civil cases that arise out of unofficial acts.

Rotunda, who helped write a Supreme Court brief on behalf of the Jones lawyers and who more recently earned $118,000 as a consultant to Starr, has written that the high court's decision was "devastating" to Clinton because of its broader implications.

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