A Pulitzer Prize New York Times journalist used the Freedom of Information Act (FOIA) to obtain a 56-page legal memo which concludes a sitting President can be indicted.
The Times reports that the legal memo, “amounts to the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office.”
Independent Counsel Ken Starr commissioned the 1998 memo, which was written by prominent conservative legal mind Ronald Rotunda.
“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 memo concludes. “In this country, no one, even President Clinton, is above the law.”
While this memo is said to be the most thorough government analysis of the constitutional question, Ken Starr was not the first special counsel to reach such a conclusion.
“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,” The Times reported.
One hypothetic listed in the 1998 memo is what would happen if a sitting President punched a heckler.
“No one would suggest that the president should be removed from office simply because of that assault,” the memo suggests. “Yet the president has no right to assault hecklers. If there is no recourse against the president, if he cannot be prosecuted for violating the criminal laws, he will be above the law.”
“Other prosecutors working for Mr. Starr developed a draft indictment of Mr. Clinton, which The Times has also requested be made public. The National Archives has not processed that file to determine whether it is exempt from disclosure under grand-jury secrecy rules,” The Times noted.