THE RIGHT TO INDICT?

February 1, 1999
		Accodring to press reports, Independent Counsel Kenneth Starr may ask a federal grand jury to indict President Bill Clinton while he is still in office. Two constitutional experts examine whether Starr has the authority to indict a sitting president.

Online NewsHour Special Report: The Impeachment Trial Jan. 29, 1999: Our pundits discuss the partisanship of the trial. Jan. 28, 1999: Analysis of the decision to continue the trial Jan. 27, 1999: Four senators on the outcome of the Senate votes and the negotiations to conclude the trial.. Jan. 26, 1999: Will witnesses be called to testify in the impeachment trial of President Clinton? Jan. 26, 1999: Extended excerpts on the debate over witnesses and other developments today in the impeachment trial of President Clinton. Jan. 25, 1999: Terence Smith talks with regional commentators about how the impeachment trial is being viewed from outside the beltway. Jan. 25, 1999: Extended excerpts and a report on the day's events in the impeachment trial. Jan. 22, 1999: After listening to six days of testimony, senators submitted their questions to the House managers and White House lawyers. Jan. 22, 1999: Extended excerpts from the constitutional debates from today's trial debate. Jan. 22, 1999: Congressional reaction to the day's proceedings. Jan. 22, 1999: Mark Shields and Paul Gigot offer end-of-week political analysis. Jan. 21, 1999: Three Republicans and three Democrats Senators react to the President's defense. Jan. 21, 1999: Extended excerpts from the final day of the president's defense. Jan. 19, 1999: Full coverage of President Clinton's State of the Union address.. Jan. 19, 1999: White House Counsel Charles Ruff presents President Clinton's defense Jan. 18, 1999: Five college newspaper editors reflect on the impeachment trial. Shields and Gigot political wrap index. Browse the NewsHour's coverage of the White House, Starr Investigation,and Conversations on Clinton.   White House Jurist Guide to Impeachment U.S. Senate U.S. House of Representatives	MARGARET WARNER: Independent Counsel Ken Starr is coming under fire again. The latest controversy was triggered by a story on the front page of yesterday's New York Times. It reported that Starr is weighing the possibility of asking a federal grand jury to indict President Clinton while he's still in office. The article said that independent counsel has not reached a decision but that, "Starr has concluded that he has the constitutional authority to seek a grand jury indictment of president Clinton before he leaves the White House in January, 2001." The article cited as its sources several associates of Mr. Starr. The reaction from senators conducting the impeachment trial of Mr. Clinton was overwhelmingly negative. SEN. CHARLES SCHUMER, (D-NY): I think that Ken Starr is once again running amok. The timing is very suspicious, why was that leaked right now? He's had other timing problems before. SEN. CARL LEVIN, (D-MI): Either he or people in his office are trying to impact this trial. They've tried to impact it before in a number of ways, wrongfully, irresponsibly, and I just think it shows terrible judgment on the part of that office. And I'm not surprised by it. They've shown this kind of poor judgment before, but it is worse than a distraction, it's irresponsible.
	A leak from Ken Starr's office?
	MARGARET WARNER: Republican senators also were critical. SEN. OLYMPIA SNOWE, (R-ME): It was certainly a distraction and it's unfortunate. Frankly, I would question the constitutionality as well. SEN. MIKE DE WINE, (R-OH): I think it would be bad public policy and I don't think it is constitutional. I don't think the independent counsel should do it. MARGARET WARNER: The president's lawyer, David Kendall announced today he would ask a federal judge to hold Starr and his staff in contempt for leaking grand jury information to the Times. DAVID KENDALL: The office of independent counsel has once again engaged in illegal and partisan leaking as manifested by yesterday's page one story in the New York Times headline: "Starr is Weighing Whether to Indict Sitting President." MARGARET WARNER: Starr Spokesman Charles Bakaly addressed the leaks issue on ABC's "Good Morning America." CHARLES BAKALY: We did not leak this information and that's all I could say about that. MARGARET WARNER: Bakaly did not dispute the substance of the Times story but said Starr would weight until the impeachment process had played out before making any move. CHARLES BAKALY: Judge Starr has not made a formal decision or final decision on what he may or may not do. He, himself, is a constitutional scholar and teaches constitutional law. So we will consider all of the opinions that are out there once it leaves a political process and then we have to make our legal decisions and that's what we'll do. MARGARET WARNER: Late today, Starr issued a statement saying he was deeply troubled by the Times report and that his office had no desire to inject itself into the impeachment process currently underway.
	The Constitutionality argument.
	MARGARET WARNER: For more on this, we're joined by two constitutional law scholars. Eric Freedman teaches at Hofstra University School of Law; he has published an extensive study of the Constitution's impeachment clause. And Ken Gormley teaches at Duquesne University Law School. He examined this subject in last month's Stanford Law Review. He also wrote "Archibald Cox: Conscience of a Nation," a new biography of the first Watergate special prosecutor. MARGARET WARNER: Professor Freedman, is Kenneth Starr -- are the reports accurate that -- if he believes he has the constitutional authority to indict a sitting president, do you think he does? ERIC FREEDMAN, Hofstra University School of Law: He has the authority, the question of whether he should exercise it is quite another matter. There are numerous instances where something which is constitutional may not be appropriate and that's exactly, for instance, what Leon Jaworski determined in considering whether to indict President Nixon. So the fact that as a constitutional matter he may have the authority doesn't mean that this is an appropriate circumstance to exercise that authority. MARGARET WARNER: What leads you to believe that the Constitution does give him that authority? ERIC FREEDMAN: Well, we have had a lot of experience with this since the framers disagreed on exactly this issue. We have had a vice president indicted, that was Aaron Burr for murder of Alexander Hamilton in their duel, as well as Spiro Agnew. We've had a number of federal judges who were imprisoned before being impeached and when they said "You can't do that to me," that was rejected. And we have a number of plausible circumstances regarding either very heavy crimes such as murder, where the president might have a defense of self-defense, where a Senate trial would be entirely inappropriate but we'd certainly want it resolved -- to much less serious things like drunken driving where we would not want to remove the president from office for it, but we would certainly want to express our disapproval -- all circumstances where the availability of criminal remedies is a good idea. And although this may not be such a circumstance today, it's unwise to interpret the Constitution inflexibly to cut off those possibilities for the future.
	Looking at history.
	MARGARET WARNER: Professor Gormley, where do you come down on this? KEN GORMLEY, Duquesne University School of Law: Well, Margaret, I believe that when Archibald Cox and Leon Jaworski looked at this during Watergate and also Robert Bork, then the solicitor general, they concluded that it was most likely not constitutional to indict a sitting president, that's, in fact, why President Nixon was not indicted and Jaworski just named him an unindicted co-conspirator. I think if you look at the constitutional history, if you look at Alexander Hamilton in "Federalist 69" and "77", it was clear what he envisioned was that the president would have to be removed from office before he could be indicted or prosecuted. And when you look at the separation of powers, ramification of this, it becomes really clear why that's the rule. It creates gargantuan problems if you allow a sitting president to be indicted and prosecuted because with that comes the ability of another branch of government to incarcerate him, to arrest him, to put him in jail. And that can effectively stop the functioning of the government because, unlike any of the officials who Professor Freedman mentioned, vice president or a federal judge, the president is the sole head of the executive branch. He's the commander-in-chief of the Army and Navy, he is the head of all the executive departments and if you are allowed to indict and prosecute this president, you can also put him behind bars and keep him effectively from being able to govern the country. MARGARET WARNER: What about that argument, Mr. Freedman, that the president is different than a vice president or than a judge because he, in essence, is -- he is certainly the head of the executive branch? ERIC FREEDMAN: It's true that none of the legal precedent directly answers this, that's why we're talking about it. But there is a lot of historical experience because exactly the same argument has been made against requiring presidents to testify. Ultimately, if a president defies a grand jury subpoena, you would throw him in jail. The truth is that presidents have been repeatedly called upon to testify, none of them have ever gone to jail, partly because judges have creatively thought that they could come up with course of sanctions, as the Judge Sirica did during Watergate, and partly because there is, of course, a political dynamic simultaneously at work which says that a president who doesn't want to be ignominiously thrown out of office and then prosecuted needs to appear to be cooperating rather than defying the legal process. Furthermore, since Alexander Hamilton in disagreement with some of his contemporaries was writing, we have the 25th Amendment which allows a president to step aside voluntarily or to be suspended involuntarily, so that a lot of these concerns about the continuity of the executive branch no longer exist and, indeed, the 25th Amendment was precisely designed to address those problems and ameliorates some of these practical concerns, which even before the 25th Amendment never really came to fruition.
	Covered by the 25th amendment?
	MARGARET WARNER: Professor Gormley, that argument that essentially the 25th Amendment means that the executive branch is not incapacitated. KEN GORMLEY: I don't buy that argument. The 25th Amendment was added obviously after President Kennedy was assassinated, and it was meant to deal with that gap in succession to figure out who would succeed to the presidency, the vice presidency. The 25th Amendment speaks specifically about removal from office, namely impeachment, death, or resignation. It does not deal with a president who is incapacitated who remains president, because if you can indict and prosecute, this person is still the president but this person may be in a jail somewhere. It simply doesn't deal with that. We have tons of problems, the system doesn't fit together, if you can do it. And one of the other problems is that if you indicted the sitting president, I believe the Constitution would also allow him just to pardon himself. So Bill Clinton could simply pardon himself; the Constitution allows a president to pardon any individual unless -- except in the case of impeachment and I believe that means impeachment and conviction. In this case, I believe that Bill Clinton could do that if he was indicted. The system isn't meant for this and that's why the framers wisely envisioned that there would be removal from office before the machinery of the criminal process went forward. MARGARET WARNER: Mr. Freedman, what is to prevent, under your reasoning, a completely say unscrupulous prosecutor from essentially usurping the removal function that the Senate exercises now under the impeachment clause? In other words, going to Mr. Gormley's point that in a criminal case because you can indict and make them show up and jail them that you do in essence, if not remove them, incapacitate them. ERIC FREEDMAN: Well, frankly, it's not the unmeritorious prosecutions people are worried about, it's the meritorious ones. The unmeritorious ones, there are any number of legal ones to swat aside. It's the meritorious ones, and in those cases the likely alternative is impeachment, which as we can see is likely to be just as disruptive for the country and maybe an inappropriate process either for something like drunken driving or to decide a closely contested issue of guilt in a serious charge. And so we want to have flexibility. And the 25th Amendment particularly was designed to cover things like capture by the enemy, which is why Ronald Reagan used it before he went into surgery. It's designed to cover contingencies of this sort, and there is no good reason why this shouldn't be in reserve, considering that all kinds of things may intervene to either prevent an impeachment or make an impeachment inappropriate. And since the concept of the two remedies is really very different, it's appropriate to have them both available in full vigor. MARGARET WARNER: And staying with you for a minute, Mr. Freedman, you start out this by saying you weren't sure it was wise. Why not? ERIC FREEDMAN: Well, there are any number of situations where it's probably not a good idea and this may very well be the quintessential example, where, in fact, the precise matter is the subject of impeachment charges, and those appear likely to fail, where the evidence of guilt is at best murky and so the likelihood of conviction before a jury is very low, where there is no reason to think unlike, for instance, Richard Nixon's tax evasion, that the matter is in any sense going to go unremedied or unresolved by the public, those are all reasons why pursuing a criminal indictment is a very poor idea and I think Professor Gormley and I probably agree about that. What we disagree about is whether it's wise to try to cut it off forever in some future case where it might actually be a perfectly appropriate idea.
	A question for the Supreme Court?
	MARGARET WARNER: Mr. Gormley, would you agree with him on that point that perhaps it should remain murky and that there are situations where it might be called for? KEN GORMLEY: Well, I think it will remain murky until the Supreme Court decides it, Margaret. And I don't think that that is likely to happen in this case unless it's pushed to the limits. But, no, I think that it's one of these things that needs to be a very clear rule. I also think that it's essential to understand that even if you go part way down the path and just indict and put it under seal, which some have suggested perhaps Kenneth Starr intends to do, you're essentially hanging the president out to dry with no ability to use all of the panoply of constitutional rights we usually have if we're criminal defendants, right to a speedy trial and all of these things. I think it's nothing but problems and I think it is constitutionally impermissible to begin a prosecution until you get to the end. And I think that both Cox and Jaworski concluded that in Watergate, and so it was more than concluding, it was unwise and irresponsible, I think the conclusion was it simply doesn't fit in with our scheme of government. MARGARET WARNER: All right, gentlemen. We have to leave it there. Thank you both very much.