PRESIDENTS CAN BE INDICTED WHILE IN OFFICE, LONG-SECRET KEN STARR MEMO SAYS

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By Miriam Raftery

July 23, 2017 (Washington D.C.) – As the special investigation into Trump-Russia ties proceeds, the question of whether a president can be indicted while in office has arisen. Now, the New York Times has obtained a secret memo prepared by Ken Starr, independent counsel during the Bill Clinton presidency, which concluded 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.”  In addition, an earlier 1974 memo written for Watergate special counsel Leon Jaworski similarly found that he could legally indict President Richard Nixon.

In both the Nixon and Clinton cases, the prosecutors chose to allow Congress to instigate impeachment proceedings instead of filing indictments. Nixon resigned when presented with impeachment papers; Clinton was impeached by the House, but was not convicted in a Senate trial.

The Starr memo, kept locked away in the National Archives until the New York Times obtained it through a Freedom of Information Act request, suggests that current special prosecutor Robert Mueller’s options could include seeking indictments against Trump if his investigation found evidence of crimes such as collusion with Russia over the election or money-laundering at Trump casinos, for example, if Trump himself had knowledge of any such activities.

In fact, the New York Times also learned that Ken Starr actual had prosecutors prepare a draft indictment against President Clinton before Congress decided to impeach on grounds of perjury related to his affair with Monica Lewinsky.  The content of that draft indictment has never been made public, though the Times has requested the document and is seeking to determine if disclosure would be allowed under grand jury secrecy rules.

Mueller’s authority as special prosecutor are broad.  The Justice Department order establishing the special prosecutor allows him to pursue anything uncovered as a result of his investigation into the Trump campaign-Russia ties, even if unrelated to the Russian issues. 

This is similar to what occurred during the Clinton investigation, which began as a probe of Clintons’ investments in the Whitewater Development Corporation.  Though no actions were ever taken against Clinton in the Whitewater probe, that investigation did lead to discover of his affair with a White House intern and his subsequent impeachment trial for perjury after he lied under oath to hide the liaison.

Any effort to indict a sitting president would almost certainly face a court challenge, but there is no Constitutional prohibition on such matters.  Indeed, the 25th amendment could be invoked to allow the Vice President to temporarily take power if a President were unable to carry out his duties temporarily while on trial.

The Washington Post has reported that President Trump is said to be weighing whether he can pardon close allies or family members for crimes not yet named, or even potentially pardon himself. Trump’s attorney called this “nonsense.”  But President Trump himself confirmed he’s had discussions on pardons in a tweet stating, "While all agree the U. S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us. FAKE NEWS."

In fact, a president’s power to issue pardons does have limits.   Per the Constitution, the president can only issue pardons for federal crimes, not state crimes, and any crimes related to impeachment are exempt.  One Congressman has filed impeachment papers against the president on obstruction of justice charges, so at minimum, any accountability for obstruction of justice actions by the President or others could not be erased through a pardon.   A pardon also does not cover crimes not yet committed, so if someone committed perjury during future testimony, for instance, that would not be included under a pardon issued earlier.

Legal opinions are mixed on whether a president could pardon himself for crimes unrelated to impeachment, with some arguing such action would be a clear conflict of interest.  Any such action would clearly be challenged and would likely wind up decided by the Supreme Court.  A president could resign, however, and obtain a pardon once a vice president is elevated to the presidency, as occurred when Gerald Ford pardoned Richard Nixon.

The accountability questions could ultimately be resolved for the future by Congressional action to enact laws setting limits on presidential pardons to avoid criminal prosecution of himself, his cabinet, his campaign officials or his family, as well as potentially limits on the power of a vice president elevated to the presidency to pardon a predecessor.

Read more:  https://www.nytimes.com/2017/07/22/us/politics/can-president-be-indicted-kenneth-starr-memo.html?smid=tw-share


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