A newly-unearthed, Clinton-era memo suggests a sitting president could be indicted — here's what it could mean for Trump
Sonam Sheth
6h • A newly uncovered legal memo suggests that a sitting president can be indicted.
• The memo comes as special counsel Robert Mueller is investigating President Donald Trump's campaign for possible collusion with Russian officials during the 2016 election.
•Legal experts say that though the memo is "persuasive" and "compelling," the question of sanctioning Trump lies squarely in Congress' court. A legal memo recently unearthed by The New York Times argues that it is permissible to indict a sitting president.
The memo was written in 1998 by the office of special prosecutor Kenneth Starr, who spearheaded the Whitewater investigation that eventually led to former President Bill Clinton's impeachment in the House.
Starr tapped conservative constitutional law and ethics professor Ronald Rotunda to write the memo, in which Rotunda cast doubt on the idea that sitting presidents are immune from prosecution.
That theory is rooted in several prior judgments, the Times said, including a September 1973 memo written by Robert Dixon, the head of the Office of Legal Counsel in President Richard Nixon's Department of Justice.
Dixon wrote that indicting a sitting president may hinder the executive branch from "accomplishing its constitutional functions" in a way that cannot "be justified by an overriding need," according to the 1973 memo cited by the Times.
Nixon's solicitor general, Robert Bork, also submitted a court brief in October 1973 arguing that sitting presidents are immune to indictment and criminal proceedings. And in 2000, the head of the Office of Legal Counsel under Clinton reaffirmed Bork's and Dixon's judgments.
But Rotunda's memo significantly narrowed the premise that a president is immune to indictment by noting that it was not stipulated in the US Constitution. Rotunda wrote that the Constitution grants "limited immunity" to lawmakers in some contexts, but not to the president.
"If the framers of our Constitution wanted to create a special immunity for the President, they could have written the relevant clause," Rotunda wrote. "They certainly knew how to write immunity clauses, for they wrote two immunity clauses that apply to Congress," he added, "but they wrote nothing to immunize the President."
If the president is granted immunity from being indicted, Rotunda argued, "if he cannot be prosecuted for violating the criminal laws, he will be above the law."
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http://www.businessinsider.com/can-mueller-indict-trump-ken-starr-memo-2017-7
