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."
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.
"The court's reasoning in Clinton vs. Jones suggests that the Constitution provides no bar to the indictment, trial and conviction of a sitting president for a federal crime," Rotunda wrote. "The court's reasoning was not limited to civil cases."
But Amar says the distinction between a civil and criminal proceeding is highly significant.
In a civil suit, the professor said, a president could merely say he's too busy to participate and could default, resulting in a monetary penalty. In a criminal case, by contrast, he could be arrested and jailed while a trial proceeds.
"Who has the authority to clap the president in irons?" says the Yale law professor.
Amar contends that no state or federal grand jury has the power to force the president to stand trial. He argues that a president may be pursuing policies unpopular to a particular locality and should not be at the mercy of a state grand jury that could indict him and force him to stand trial.
"If some clever state or county prosecutor in Charleston, S.C., indicted President Lincoln in March 1861, we might not have a union today," Amar says. "The presidency is the one office we all vote for as a nation. That should count for something."
Steven Saltzburg, a George Washington University law professor, suggests a sort of compromise position. While most scholars believe that an actual trial would prove too burdensome to a president, those concerns might not arise if he were indicted under seal.
Saltzburg says an independent counsel could indict a president, but seal the indictment until after the president has left office. This step would cause less disruption to the executive branch, and would prevent the statute of limitations from running out and barring the prosecution.
Cloud over presidency
The only drawback, Saltzburg says, is that a cloud would hang over the president. "There might be a sense it's just not fair," he says. "A court could find denial of due process -- defaming someone without their being able to respond."
Rotunda, a University of Illinois professor who is now a visiting professor at the University of Alabama law school, says his argument comes down to the fundamental fact that the president is not above the law.
"It never occurred to people that the president was a monarch," he says. "Someone asked George Washington,'What should we call you? Your Excellency? Your Highness?' He said, 'How about Mr. President?' "
But lawyers who disagree with Rotunda argue that the president is not above the law, merely subject to different laws. The Constitution, they note, allows for the prosecution of a president for any crimes committed during his term of office, once the president leaves that office.
Even Clinton's lawyers have stressed this point in their arguments against impeachment. But at least one legal scholar thinks that an acquittal by the Senate would get the president off the hook for good.
Joseph Isenbergh, a University of Chicago law professor, suggests that if the Senate acquitted Clinton, which seems all but inevitable, any later prosecution would amount to "double jeopardy" because it would result in a second trial on the same offenses.
The Constitution does say that a person who is convicted of impeachment by the Senate can be tried later for criminal charges. Isenbergh notes that the Constitution says nothing about what happens if the person is acquitted by the Senate.
But many of his colleagues disagree. The Senate trial, Saltzburg says, is "not relevant" to any criminal prosecution -- present or future. "The impeachment process," he says, "is just a political proceeding."
Sun staff writer Lyle Denniston contributed to this article.
Pub Date: 2/03/99