A newly-unearthed, Clinton-era memo suggests a sitting president could be indicted — here’s what it could mean for Trump

Robert Mueller
Robert Mueller. Alex Wong/Getty Images
  • 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.”

The Starr memo’s public unveiling comes as special counsel Robert Mueller is investigating President Donald Trump’s campaign and whether any of its associates colluded with Russian officials to influence the 2016 election.

Mueller has been granted broad authority by Deputy Attorney General Rod Rosenstein. When he appointed Mueller a little over a week after former FBI Director James Comey was fired, Rosenstein tasked him with investigating “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” as well as “any matters that arose or may arise directly from the investigation.”

Though Trump initially said in a statement that he was confident the investigation would clear his name and that he was “[looking] forward to this matter concluding quickly,” he has since soured on Mueller’s probe and the two congressional intelligence committee investigations.

Trump has since called the investigations a “witch hunt” led by Democrats, who he says are upset about their election loss. He has in recent days asked aloud why a special counsel hadn’t been appointed to investigate what he called “illegal acts” by the Obama administration and Hillary Clinton’s campaign.

Trump also publicly warned Mueller last week against investigating the Trump family’s finances, saying that Mueller would be crossing a “red line” if he did so.

“Look, this is about Russia,” Trump said. “So I think if he wants to go, my finances are extremely good, my company is an unbelievably successful company.”

Trump’s comments came the day before a Bloomberg report that said Mueller had expanded his probe to look at Trump’s past business dealings.

James Comey
Former FBI Director James Comey Drew Angerer/Getty Images

While Starr’s memo does make the case that the president could be indicted while in office, legal experts say it’s unlikely Mueller would take that path.

“I would be surprised if Mueller indicted the president for the same prudential reasons that swayed Starr,” Renato Mariotti, a defence lawyer and former federal prosecutor, told the Times. “But the specter that he might do that could have an impact on things.”

“If I were on the president’s team, I would say, ‘I don’t think it’s likely that he would, but it’s possible,’ depending on what the facts are,” Mariotti said.

Jon Michaels, a professor at the UCLA School of Law, said the argument outlined in Starr’s memo was “compelling and persuasive but not necessarily dispositive.”

He said it’s unlikely the investigation will proceed along a different path than it previously would have had the memo not been disclosed.

“Even if Mueller wanted to indict and seek criminal sanctions against Trump, there would be challenge by the president’s defence team whether Trump, as sitting president, could be criminally prosecuted,” Michaels said. In that case, he added, the courts likely “wouldn’t decide that question, but refer to it as a ‘political question’ for Congress to decide.”

Either way, he said, the ball will be in Congress’ court.

“Mueller is going to more squarely focus on present his evidence to Congress, with a possible impeachment recommendation” if he uncovers such proof, Michaels said.

As the investigation escalates and widens its scope, some Trump allies have said the president is weighing the possibility of firing Mueller. One West Wing official told Axios on Saturday that the president was in the process of building a “wartime Cabinet” because he may really dismiss Mueller. In the event that happens, the official said, Trump will need “a group that can fight through what could end up being something quite amazing.”

“We’re going to see out-and-out political warfare, and not over … Medicaid,” the official told Axios.

That assessment was echoed by Matthew Miller, the former Department of Justice spokesperson under President Barack Obama, who tweeted that “we are headed for certain crisis.”

“Trump just will not, cannot allow this investigation to go forward,” Miller said.