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Sun Dec 9, 2018, 07:09 PM


SETTING IT STRAIGHT This Idea That a President Can't Be Indicted Is a Myth [View all]


This Idea That a President Can’t Be Indicted Is a Myth
There’s no law saying a president can’t be indicted. Just a couple of Justice Department memos. And they can be rewritten.
Dean Obeidallah
Daily Beast

Let’s be clear on a couple points that the right tries to obscure. First, the U.S. Constitution does not bar charging a sitting president with a crime. Second, the U.S. Supreme Court has never handed down such a decision. Thus, it’s an open question.

What we do have, though, are two memos drafted by the Department of Justice’s Office of Legal Counsel that opine that a sitting president should not be indicted. The first in 1973 was drafted in connection with Richard Nixon and Watergate. The second was written in 2000 after the Bill Clinton’s impeachment.

Both memos conclude that presidents are not immune from crimes they may commit. The only question is the timing of the legal proceedings that can be brought against them. In the 1973 memo, the DOJ lawyers stated point blank that as “a general proposition, the Constitution does not require that an officer of the United States be impeached before criminal proceedings may be instituted against him.”

They concluded, however, that the president is an exception to this rule and shouldn’t be subject to criminal proceedings while in office. Their rationale was that if a president is focused on fighting criminal charges, it will “hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs,” adding, “The spectacle of an indicted president still trying to serve as chief executive boggles the imagination.”

The DOJ lawyers’ view that impeachment of a president is OK but defending against criminal charges is too much of a burden is simply not grounded in reality. Just look at Bill Clinton’s impeachment and trial, which grabbed headlines for most of 1998 and into 1999. The Senate trial alone took five weeks from Jan. 7, 1999, until Feb. 12, 1999, when Clinton was acquitted. That was longer than Paul Manafort’s trial, which just concluded in three weeks. So the wheels of criminal justice can turn faster than the wheels in Congress.


Can the President Be Indicted? A Long-Hidden Legal Memo Says Yes
By Charlie Savage
July 22, 2017
New York Times

WASHINGTON — A newfound memo from Kenneth W. Starr’s independent counsel investigation into President Bill Clinton sheds fresh light on a constitutional puzzle that is taking on mounting significance amid the Trump-Russia inquiry: Can a sitting president be indicted?

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.


Newly Disclosed Clinton-era Memo Says Presidents Can Be Indicted
New York Times

Although nothing in the Constitution or federal law explicitly says presidents are immune from indictment while they remain in office, the Justice Department's Office of Legal Counsel has asserted that they are. A newly disclosed legal memo from the office of Kenneth Starr, the independent counsel who investigated President Clinton, challenges that analysis. The National Archives made the memo public in response to a Freedom of Information Act request by The New York Times.

Read the full memo at:

Top Democrat: Constitution allows Trump to be indicted in office
by Naomi Lim
December 09, 2018
Washington Examiner

Rep. Jerry Nadler, D-N.Y., doesn't buy Justice Department guidelines that suggest a sitting president can't be indicted.

"I disagree with the Office of Special Counsel and the Department of Justice: There is nothing in the Constitution that prohibits the president from being indicted," the likely next chairman of the House Judiciary Committee told CNN Sunday. "This country originated in a rebellion against the English king. We did not seek to create another king. Nobody, not the president, not anybody else, can be above the law. There's no reason to think that the president should not be indicted."

Nadler added that either way, a president can be indicted after they leave office.


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