Unbeknownst to the public, in May 1998, the distinguished constitutional scholar Ronald W. Rotunda had reached the opposite conclusion. He confidentially advised then-independent counsel Kenneth Starr that one particular president, Bill Clinton, could be indicted. “The U.S. Supreme Court has repeatedly reaffirmed the state[ment] that no one is ‘above the law,’” Rotunda wrote. The independent-counsel statute itself made no sense if the counsel could not indict the president—and Clinton had consented to passage of the statute that created the office, so in effect he had consented to be indicted. Anyway, the Whitewater “scandal” was not about his conduct as president: “witness tampering, document destruction, perjury, subornation of perjury, obstruction of justice, conspiracy, and illegal pay-offs … in no way relate to … President Clinton’s official duties” and “are contrary to” his duty “to take care that the law be faithfully executed.”
All of these opinions used the same materials, even as they reached varying conclusions. (One exception: Rotunda considered the laws of other countries, many of which—for example, Papua New Guinea’s—allow prosecution.) Consider one textual point: Bork cited the 25th Amendment, which allows the temporary removal of a disabled president. This, he said, argued against indictment because it shows the nation has to have a president at all times. Rotunda also cited the 25th Amendment. Since a president can always be replaced, he wrote, indictment in office would be no big deal.
No wiser after the memos, I bounced the question off half-a-dozen distinguished scholars, of varying professional backgrounds. Each of them began as the memo writers did—text, history, precedent, and policy. None thought those sources gave the answer, and each had a different suggestion for how to move the question forward.
Peter Shane, a former OLC attorney and a prominent separation-of-powers scholar at Ohio State University’s Moritz College of Law, suggested an institutional answer: A government lawyer, he suggested, owed a duty to begin with earlier executive-branch opinions. Those are not binding; but there’s “a presumption of respect for prior opinions,” he said. But such an important question should also inspire a complete review of all the historical sources.
The earlier opinions had suggested that an indictment of a president would be too disruptive. But Shane found that argument “not very persuasive.” The Constitution permitted disruption of a presidency by impeachment, he said. Would an indictment be “more destabilizing than impeachment?”
Walter Dellinger, now a professor at Duke University and Washington lawyer, headed OLC during the Clinton administration. As acting solicitor general, he also argued—and lost—Clinton’s claim that he should be immune, while in office, from Paula Jones’s civil suit. The history and caselaw sources lead nowhere, he said: “It’s a scoreless tie.” Affording the president immunity in office, he suggested, might make it impossible even to try other defendants in a serious conspiracy case. Watergate Special Prosecutor Leon Jaworski circumvented this problem with an indictment naming President Nixon as an “unindicted co-conspirator.” But Dellinger noted that Jaworski did not concede that a sitting president could not be indicted.