Clinton-Era Memo Adds New Layer to Question of a Trump Indictment

By CHARLIE SAVAGE
© 2017 New York Times News Service

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.”

Starr assigned Ronald Rotunda, a prominent conservative professor of constitutional law and ethics, to write the memo in spring 1998 after deputies advised him that they had gathered enough evidence to ask a grand jury to indict Clinton, the memo shows.

Other prosecutors working for Starr developed a draft indictment of Clinton, which The Times has also requested be made public.

In 1974, the Watergate special counsel, Leon Jaworski, had also received a memo from his staff saying he could indict the president, in that instance Richard M. Nixon, while he was in office, and later made that case in a court brief. Those documents, however, explore the topic significantly less extensively than the Starr office memo.

In the end, both Jaworski and Starr let congressional impeachment proceedings play out and did not try to indict the presidents while they remained in office. Starr, who had decided he could indict Clinton, said in a recent interview that he had concluded the more prudent and appropriate course was simply referring the matter to Congress for potential impeachment.

As Robert S. Mueller III, the special counsel in the latest inquiry, investigates the Trump campaign’s dealings with Russia and whether President Donald Trump obstructed justice, the newly unearthed Starr office memo raises the possibility that Mueller may have more options than most commentators have assumed.