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Prosecuting the PresidentHow Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law$

Andrew Coan

Print publication date: 2019

Print ISBN-13: 9780190943868

Published to Oxford Scholarship Online: January 2019

DOI: 10.1093/oso/9780190943868.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 21 October 2019

Can the President Be Charged with a Crime?

Can the President Be Charged with a Crime?

Chapter:
(p.111) 6 Can the President Be Charged with a Crime?
Source:
Prosecuting the President
Author(s):

Andrew Coan

Publisher:
Oxford University Press
DOI:10.1093/oso/9780190943868.003.0007

Abstract and Keywords

What if a sitting president accepted illegal foreign campaign donations or sought to obstruct an ongoing federal investigation? Could he be charged with a crime? The conventional wisdom is no, but the Constitution is silent on this question, no court has ever decided it, and there are respectable arguments on both sides. This chapter recounts these arguments and the intense debates they provoked among the young lawyers working for past special prosecutors. Ultimately, both Leon Jaworski and Ken Starr chose not to indict the president. Future prosecutors are likely to follow the same course. This does not mean that special prosecutors are powerless to hold the president accountable for violating the law. But if they are to do so, the American people have a central—and daunting—role to play. Once again, the last, best hope for the rule of law is not judges or lawyers but democratic politics.

Keywords:   Watergate, Richard Nixon, Leon Jaworski, Kenneth Starr, Philip Lacovara, Indictment, Impeachment, Bill Clinton

During the 2016 presidential campaign, Donald Trump famously quipped that “I could stand in the middle of 5th Avenue and shoot somebody, and I wouldn’t lose voters.” He was presumably speaking in jest, or at least hyperbolically, but what if a sitting president actually did this? More realistically, what if a sitting president accepted illegal foreign campaign donations or sought to obstruct an ongoing federal investigation? Could he or she be charged with a crime? The conventional wisdom is no, but the Constitution is silent on this question, no court has ever decided it, and there are respectable arguments on both sides.1

The principal argument that a sitting president cannot be charged with a crime is based on the impeachment clause of the U.S. Constitution. That clause provides that a president—or any other official—who has been removed from office by impeachment “shall nevertheless be liable and subject to Indictment, Trial, Judgement, and Punishment, according to Law.” By explicitly permitting the president to be charged with a crime after he is removed from office, this language seems to imply that the president cannot be charged with a crime before he is removed.

(p.112) Those who take this view generally bolster their textual argument with a practical argument. The president, they contend, exercises unique—and uniquely important—responsibilities in our constitutional system. If a sitting president could be charged with a crime, his ability to discharge those responsibilities effectively might be severely hampered. It is virtually impossible to imagine the president running the federal government and conducting U.S. foreign policy from jail. But if sitting presidents can be charged with a crime, they can presumably be convicted and sentenced. In such a case, the president might well end up incarcerated. Even if that complication could be avoided, perhaps by mandatory bail, the essential problem would remain. The cloud of uncertainty and opprobrium carried by criminal charges would badly, perhaps fatally, weaken any president facing indictment or conviction. Such an outcome would seem to frustrate the framers’ decision to place the impeachment power in the hands of Congress, rather than the courts.

These are plausible arguments, but there are also strong arguments on the other side. The principle that no one is above the law runs deep in the American tradition. If the president cannot be charged with a crime, that would place him above the law in an important sense. The Constitution nowhere explicitly mandates this outcome. Many distinguished lawyers and commentators have argued that we should not lightly infer a rule so much at odds with basic American values. The founders, after all, fought a war rather than submit to the principle that “the King can do no wrong.”

There is more. The impeachment clause of the Constitution makes no distinction between presidents and other federal officials, such as judges and cabinet officers. If the president cannot be charged with a crime, the same rule would seem to govern the secretary of defense, the attorney general, and federal judges. Yet there are many historical examples of such officials, especially (p.113) judges, being charged with crimes. Even Richard Nixon’s vice president, Spiro Agnew, was charged with—and ultimately pled guilty to—tax evasion while still in office. Absent any contrary indication in the constitutional text, why should the president be treated differently?

This question is an urgent one for special prosecutors investigating the president because it determines their endgame. If the president can be charged with a crime, a special prosecutor’s goal is to determine whether the evidence warrants this extraordinary step. If the president cannot be charged with a crime, the special prosecutor’s goals are less clear. But historically, they have included developing a factual record on which Congress might base an impeachment decision. Either way, the legal questions are shot through with politics. Because there is no clearly established law on point, any special prosecutor deciding whether to pursue charges against the president must consider whether the country—or the president—will stand for it. Seldom has any one person, other than a president himself, faced a decision with greater consequences for the nation.

A Tense Internal Debate

Leon Jaworski succeeded Archibald Cox as Watergate special prosecutor on November 5, 1973. It was immediately apparent that the two men had very different personal and managerial styles. Cox was cerebral, high-minded, and professorial. He liked to talk through major decisions with his subordinates in the egalitarian fashion of a New England town meeting. Jaworski, a bulky Texan with a large head of receding white hair, was much more a man of the world. His primary experience was not in the rarefied atmosphere of the Supreme Court but down in the trenches of the Texas trial courts. By temperament and philosophy, he was a pragmatist. (p.114) He believed in getting things done and had little patience for extended debate. While nominally a Democrat, he was known to be a strong political conservative.2

Jaworski faced a considerable challenge in taking over the sprawling Watergate investigation midstream. The terms of his appointment gave him “complete freedom” to select his own team. But as a practical matter, he had little choice but to retain the staff of roughly forty lawyers that Cox had recruited and hired. Those lawyers were nearly all Ivy League–educated easterners a full generation younger than Jaworski. They came from an entirely different cultural and professional world than their new boss, who had graduated from Baylor Law School and spent virtually his whole life in Texas. They had also been deeply shaken by the trauma of the Saturday Night Massacre. Few believed that Nixon would appoint anyone but a reliable stooge to replace Cox. When Jaworski addressed them for the first time at the 1425 K Street offices on the afternoon of November 5, the air was thick with mutual mistrust.3

Three months later, relations between Jaworski and his staff remained chilly, remote, and somewhat tense. As January 1974 came to a close, the young Watergate Task Force lawyers began the work of drafting an indictment. The defendants would include Richard Nixon’s top advisors. The principal charge would be conspiracy to obstruct justice by covering up the Watergate burglary. The evidence was overwhelming, and the president was right at the heart of it, but no one knew quite how to handle this. Could the special prosecutor indict the president? If not, what else could be done? In late January and early February, the task force lawyers talked of little else, but they knew that Jaworksi himself would have to make the final call, and he had said nothing at all on the subject to the lawyers responsible for drafting the indictment.4

This was not because Jaworski was not interested or concerned. The question weighed on him heavily, but he was still leery of his (p.115) aggressive young team of prosecutors. Loyalty counted greatly with Jaworski, and he was not yet certain how far he could count on the loyalty of his staff. He therefore commissioned a top-secret analysis from Philip Lacovara, head of the legal research team.

A slightly pudgy, mustachioed veteran of the solicitor general’s office, Lacovara had graduated first in his class from Columbia Law School. As a government lawyer, he had quickly earned a reputation for legal brilliance, but he did not immediately apply his talents to the question at hand. Instead, he delegated the assignment to a junior lawyer, who cautiously doubted the “propriety” of indicting the president. Unsatisfied, Lacovara drafted his own supplementary memorandum emphasizing that “there was no explicit or implicit constitutional bar to indictment.” In an earlier analysis for Archibald Cox, Harvard law professor John Hart Ely—perhaps the greatest constitutional law scholar in U.S. history—had reached the same conclusion.5

Jaworski remained deeply skeptical. Constitutional niceties aside, he could not imagine hauling the president into court like a common criminal. What if he refused to comply? What if there was a nuclear war? Would the president just ask for a recess? Jaworski seriously doubted whether the president could perform his constitutional functions while under indictment. Besides, indicting the president would mean endless delays as the inevitable legal challenges worked their way through the courts. Meanwhile, the president’s lawyers and public relations people would pound the special prosecutor’s office in the court of public opinion. All this would complicate Jaworski’s ability to prosecute the other major players in the conspiracy. There were just too many downsides.6

A Risky Memorandum

By the first week of February, Jaworski’s continuing silence had pushed several younger members of his staff into a state of active (p.116) alarm. Was it possible that he meant to take no action at all regarding the president? Murmurings to this effect spread through the office like a virus. George Frampton, one of Archibald Cox’s first hires, and a few others decided that they had to act. They could not allow Jaworski to make such a momentous decision without at least putting their views to him in writing. Together, they drafted a memorandum making the case for indictment.7

It was, they recognized, a risky move. Jaworski was obviously sensitive about handling the president, and he did not take it well when others challenged his judgment. To make matters worse, he might regard their memo as an aggressive, even hostile, maneuver. It might look like they were trying to put themselves on the record so they could criticize his decision later. The memo they produced clearly reflects these anxieties. Alternately strident and deferential, it reads as a plaintive, impassioned, almost poignant, plea to the effect of “we really think the President can be indicted, but even if you disagree, please do something.”8

The memo begins by emphasizing the special prosecutor’s duty and responsibility to “investigate and prosecute allegations involving the President.” It explains the importance of this duty to restoring public confidence in the government. This, the memo repeatedly points out, was the whole rationale for appointing a special prosecutor in the first place. The memo also emphasizes the unique constitutional role of the grand jury, which the special prosecutor would soon ask to hand down indictments.

This group of ordinary men and women had given two years of their lives to the Watergate investigation. All of them had sworn an oath to make a “true presentment” of “all offenses” that came to their knowledge. Could the special prosecutor in good conscience ask these dedicated citizens to do anything less in the case of the president? “For us or the grand jury to shirk from an appropriate expression of our honest assessment of the President’s guilt,” the (p.117) young lawyers wrote, “would not only be a departure from our responsibilities but a dangerous precedent damaging to the rule of law.”9

Finally, the memo reaches its central point: “there is nothing in the text or the legislative history of the Constitution that bars indictment of a sitting President.” Conceding that several “political considerations” might weigh against indictment, the memo systematically works through these arguments and finds all of them wanting. Its most interesting claim is that indicting the president would be no more disruptive than impeachment proceedings and probably less. A criminal trial, the memo points out, would be relatively short and focused on a few discrete charges precisely defined by law. Impeachment proceedings could last months, would lack well-established norms or procedures, and would likely be premised on comparatively hazy charges and evidence. If the impasse created by indictment or conviction of the president proved intolerable, impeachment gave Congress and the people a ready remedy.10

While pressing the case for indictment vigorously, the memo carefully stops short of insisting on that course. Frampton and his coauthors knew that Jaworski would ultimately make that decision for himself. They also felt that their chances of persuading him to their view were relatively slim. The memo, therefore, bends over backward to defer to Jaworski’s judgment on these questions.

More important than this stylistic deference, the memo offered Jaworski a concrete alternative—the now obscure but historically well-pedigreed device of “presentment.” Basically, presentment would permit the grand jury to formally declare that “if he were not President, Richard Nixon would have been indicted.” In this way, the grand jury and the special prosecutor could uphold the rule of law while avoiding the most pressing practical objections to indictment. With the judge’s permission, the grand jury could (p.118) also refer a presentment to Congress for use in impeachment proceedings. It was still a grave step to accuse the president of the United States of a crime, but the memo’s authors thought that step necessary to safeguard “the force of law in our social and governmental processes.”11

An Explosion Breaks the Ice

Frampton submitted the memo to Jaworski on February 12 to spectacular effect. Jaworski was not merely unpersuaded; he felt blindsided and betrayed. Previously, he had been “bothered by feelings that the task force was too eager to take on the White House at every opportunity.” Now, he seemed to have “a mutiny on his hands.” At a meeting the next day, Jaworski exploded in anger at Richard Ben-Veniste, the cocksure and irreverent young chief of the Watergate task force. Clearly, Ben-Veniste had put Frampton and the others up to writing the memo as “frontmen” for himself. The task force lawyers, Jaworski said, were trying to sow discord in the office “in order to limit his freedom of action.”12

This blowup left staff morale in shambles. Jaworski was not merely uninterested in their input; he seemed to regard them as “virtual renegades.” In retrospect, however, this confrontation marked an important turning point. In the days that followed, the task force lawyers regrouped and talked among themselves about how to proceed. Gradually, they opened up constructive lines of communication with Jaworski, who proved himself more open-minded than he had initially appeared.13

It helped that all of the parties were strongly motivated to solve the same thorny practical problem: How do you prosecute a conspiracy to obstruct justice without prosecuting its ringleader? Every first-year law student learns that members of a criminal conspiracy (p.119) are liable for the acts of all other members taken to further the conspiracy. This meant that Nixon’s aides were liable for the criminal acts of the president as well as their own. But first prosecutors would have to establish that all were knowing members of the same conspiracy. How were they to do that without indicting or even seeking a presentment against Nixon?

There was, however, an even bigger problem. Much of the best evidence against Nixon’s aides came from the White House tapes that the president had turned over after the Saturday Night Massacre. But in general, such out-of-court statements qualify as hearsay. That makes them inadmissible in court under the Federal Rules of Evidence. Those rules make an exception for the statements of coconspirators, but to take advantage of that exception, the prosecution would need to establish that the president fit this description.14

These were hardly novel problems. In many conspiracy prosecutions, one or more members of the conspiracy cannot be indicted due to legal immunity, mental incompetence, or death. In such cases, prosecutors can name these individuals as “unindicted coconspirators.” This enables their actions to be held against the indicted members of the conspiracy. It also allows their out-of-court statements to be admitted in evidence under the “coconspirator exception” to the hearsay rules.

Jaworski, however, was adamantly opposed to taking any step that could be construed as accusing the president of a crime. In his mind, asking the grand jury to name the president an unindicted coconspirator was no different from asking it to issue a presentment against him. Both would cast a pall of opprobrium over the presidency. Both would also bring down the full weight of the president’s wrath on the special prosecutor’s office. On the other hand, as an experienced trial lawyer, Jaworksi keenly understood the difficulties his position created for the prosecution of (p.120) Nixon’s aides. And he cared about that prosecution as deeply as his staffers did.15

Over the last two weeks in February, the task force lawyers hit upon an ingenious solution to this dilemma. What if the special prosecutor asked the grand jury to vote now to authorize him to name the president as an unindicted coconspirator later? As Frampton and Ben-Veniste later recalled, this approach would solve the trial-related problems that worried the young prosecutors. It would also satisfy Jaworski’s “strong desire to avoid public confrontation with the President. When it became necessary to name the President, Jaworski could defend that action by arguing that it was a prerequisite to effective prosecution of Nixon’s aides.” Jaworski liked the idea and asked Ben-Veniste to put it in writing.16

The Bulging Briefcase

Figuring out what to do about the president was not the only thorny problem on the special prosecutor’s hands. Jaworski and his team were also wrestling with the equally thorny question of what the grand jury could report to Congress and how. In ruling out presentment, Jaworski had made clear that he would not sign off on any strategy that accused the president of a crime. He remained open to sending evidence to Congress, including the highly incriminating White House tapes. But he strongly opposed appending any summary, analysis, or “theory of the case” against the president. Raw evidence, he thought, would speak for itself. Anything else might subject the grand jury to criticism for overstepping its role. Jaworski also worried that Judge Sirica, the stern former pugilist who presided over the grand jury proceeding, would balk at any accusatory report.17

The young task force lawyers did not share Jaworski’s concerns. They believed that an accusatory approach was amply supported (p.121) by historical precedent. They were also deeply concerned about the prospect of transmitting raw evidence. The House Judiciary Committee, which would ultimately vote on impeachment, was already awash in more evidence than it could make sense of. This left plenty of room for the president’s defenders to maneuver. Without firm guidance from the special prosecutor, there seemed a real risk that the Committee’s investigation would break down into inconclusive partisan bickering. Far more than evidence, the young lawyers thought, the Committee needed guidance, summary, and synthesis.18

Jaworski had firmly rejected summary and analysis, but the task force lawyers were not prepared to give up. Perhaps there was a “middle course” to be found. Without summarizing or analyzing the evidence, the grand jury might be able to “arrange it in a format that made its significance as clear as possible. Even better, the jury could supply the House Judiciary Committee with an index to the evidence showing how various pieces fitted together.” The special prosecutor’s team would, of course, assist in this effort. The task force lawyers called this approach “the road map.” On February 18, the boyish, clean-cut George Frampton and a few others met with Jaworski to make their pitch. The special prosecutor did not say yes, but he did not say no either.19

This was enough for Frampton, who began the monumental task of assembling the relevant evidence. Working with other members of the task force, he also began drafting a road map to accompany the evidence. The approach they settled on was simple and clean. The road map would comprise a series of spare “Statements of Fact,” each followed by a list of supporting evidence. This format was chosen to satisfy Jaworski’s exacting conditions, though Ben-Veniste and Frampton later acknowledged their hope that it would “serve as a do-it-yourself kit for the Judiciary Committee, helping it reassemble the individual pieces of grand (p.122) jury testimony and other evidence into a coherent theory of a criminal case.”20

The special prosecutor was scheduled to address the grand jury at 10 a.m. on February 25. As of that morning, the task force lawyers still did not know what he had decided about the road map or about secretly naming Richard Nixon as an unindicted conspirator. When Jaworski arrived at the office, Frampton was the only lawyer there. Jaworski handed him a sheaf of papers and asked him to have the task force secretary type them up. “It’s what I am going to tell the grand jury,” Jaworski said drily.21

Frampton waited for the special prosecutor to leave his office and raced through the handwritten pages he had been handed. Jaworski had embraced both of his staffers’ proposals. He would seek the grand jury’s authorization to include the president on a list of unindicted coconspirators, who would be named publicly “at a later date.” He would also tell the jury that it could “transmit evidence to the House Judiciary Committee by way of a report, and the prosecutors would assist in this task in any way desired by the jurors.”22

Later that morning, Leon Jaworski arrived at the E. Barrett Prettyman Courthouse to address the grand jury. Many jurors asked pointed questions about his suggestion that they could not indict the president. But Jaworski defended his position capably and apparently persuasively. After fielding questions, he left the task force lawyers to present the draft indictment and proposed list of conspirators. The jurors then retired to deliberate privately. When they returned, Vladimir Pregelj, the impassive, goateed forty-six-year-old foreman, announced their decision. They had voted nineteen to zero to name the president as an unindicted coconspirator.23

It still remained for the task force lawyers to complete the road map and assemble the supporting evidence for the jury’s approval. (p.123) They worked frantically to meet Jaworski’s self-imposed March 1 deadline. By Thursday, February 28, both the indictment and road map were complete. That evening, Frampton carefully assembled the assorted tapes and documents referenced in the road map. He then packed them into an oversize brown case, which would soon become known from press reports as “the bulging briefcase.” They all fit, but just barely.

The next morning, Jaworski and his team rode the back elevator to Judge Sirica’s small, second-story courtroom, along with the grand jury. Imposing and vaguely funereal in his long black robe, Judge Sirica entered and called the proceedings to order. Jaworski sat behind the same walnut counsel table where Archibald Cox had defended his subpoena of Nixon’s White House tapes just six months earlier. At Sirica’s signal, Jaworski rose and explained that “the grand jury had material to be delivered to the court.” As foreman Vladimir Pregelj strode forward from the first row of spectator benches, the atmosphere in the courtroom was hushed and expectant. Pregelj passed two large envelopes up to Sirica, one containing the indictment and the other the road map. He then returned to his seat.

Brandishing a formidable letter opener, whose theatrical potential he exploited with deadpan relish, Sirica briskly sliced open both envelopes. When he appeared to be done examining their contents, the equally theatrical Richard Ben-Veniste produced a large brown briefcase from under the counsel table. He walked briskly to the front of the courtroom and hoisted the heavy case to the bench like an offering on the altar. Sirica accepted it without comment.

Sometimes discretion is the better part of valor. Jaworski and his team had not indicted the president, but they had given the House Judiciary Committee a road map to impeachment. They had also ensured that the country would learn, eventually, that a grand jury had found probable cause to accuse Richard Nixon of (p.124) a crime. The events of March 1, 1974, in Judge Sirica’s courtroom went a long way toward forcing Nixon to resign in disgrace the following August. In this way, Leon Jaworski accomplished the same result his young lieutenants hoped to accomplish through indictment or presentment. He helped the American people vindicate the principle “that no man in this country is so high as to be above the law.”

Once More unto the Breach

In the waning days of January 1999, President William Jefferson Clinton seemed increasingly certain to survive his Senate impeachment trial. The president’s polished, professional lawyers were running circles around the inept congressmen—called “managers”—who served as impeachment prosecutors. Several procedural votes narrowly won by the president’s Republican adversaries demonstrated the cold truth. They were very far from mustering the two-thirds majority required to convict and remove Clinton from office. Everywhere he went, the president impressed those around him with the renewed spring in his step. Then he read the January 31 edition of the New York Times.24

Splashed across the front page was the headline “Starr Is Weighing Whether to Indict Sitting President.” The story explained that Independent Counsel Ken Starr had solicited outside legal advice from two conservative constitutional law professors. Both advised him that “the Constitution and legal precedent provide a prosecutor with the authority to seek the indictment, trial and conviction of a sitting President.” According to anonymous “associates,” Starr agreed with this view. But he had not decided “whether, or when, to ask the grand jury to charge Mr. Clinton with perjury and obstruction of justice in the Monica S. Lewinsky matter.”25

(p.125) The backstory was strikingly similar to the one that transpired in the Watergate special prosecutor’s office almost precisely twenty-five years earlier. A group of hard-charging young prosecutors in Starr’s office was convinced that Bill Clinton had committed indictable offenses. They thought they could persuade an impartial jury to convict and were eager to get started. To that end, they were pressing Starr to seek a grand jury indictment of Clinton immediately after the Senate impeachment trial. Starr’s staffers were familiar with the memorandum George Frampton and others had written to Leon Jaworski, which they passed around like samizdat. As a group, they enthusiastically endorsed its conclusion: “a failure to indict the incumbent President, in the face of evidence of his criminal activity, would seriously impair the integrity of the criminal process.”26

As had been the case in the Watergate special prosecutor’s office, many of Ken Starr’s most eager subordinates were in their late twenties or early thirties. But the generation gap between the staff and the special prosecutor was not quite so large. In 1974, Leon Jaworski was sixty-nine. In 1999, Starr was only fifty-three. Perhaps in part for this reason, Starr was more receptive than Jaworski to arguments that the Constitution permitted him to indict a sitting president.27

The arguments pressed by Starr’s experts and staff lawyers closely paralleled the arguments Jaworski had rejected as unwise and impractical. The Constitution nowhere explicitly grants a sitting president immunity against criminal prosecution. This could not be a mere oversight because the framers knew how to grant such immunity when they wanted to. The speech or debate clause exempts members of Congress from criminal prosecution for anything said or done during legislative debates. The framers could have granted a similar exemption to the president but chose not to. Practical arguments for inferring such an exemption were (p.126) unpersuasive. Indictment of a sitting president would no more “cripple the presidency” than would impeachment, which the framers apparently thought perfectly tolerable.28

Ken Starr’s constitutional expert Ronald Rotunda also advanced two new arguments. A former Democrat, Rotunda had worked for the Senate Watergate Committee right out of Harvard Law School. Over the years, he had evolved into a staunch conservative with close ties to the Heritage Foundation, the Federalist Society, and other bastions of the legal right. By 1999, no one knowledgeable about constitutional law was surprised to see him working for Ken Starr or supporting the indictment of a sitting Democratic president. Nevertheless, Rotunda’s Watergate bona fides gave him a certain gravitas, as did his long and distinguished record as a scholar.29

Still, the new arguments Rotunda advanced were weak. First, he contended that the independent counsel statute gave Ken Starr greater constitutional authority than earlier special prosecutors, who were mere creatures of the executive branch. Second, he argued that the Supreme Court’s 1996 decision in the Paula Jones case changed everything. By allowing a civil sexual harassment suit against the president, the Court had implicitly negated any argument for a presidential exemption from criminal indictment.30

The problem with the first argument is that, constitutionally speaking, Ken Starr remained an “inferior officer” subordinate to the president. In this sense, which was the only relevant one, independent counsels were just like earlier special prosecutors. More important, nothing about the independent counsel’s statutory independence lessened the impact a criminal indictment would have on the president’s ability to do his job, which is by far the most powerful argument against the constitutionality of indicting a sitting president.31

(p.127) The problem with Rotunda’s second argument is its implausible assumption that a criminal indictment would interfere with the president’s responsibilities no more than a civil suit would. In retrospect, the Supreme Court was obviously wrong in predicting that a civil sexual harassment suit would not significantly distract the president from his duties. But even if that prediction had proven correct, the Court said nothing to suggest that it would extend to a criminal indictment. It is easy to see why. The opprobrium commonly associated with criminal charges is far greater. So is the imperative for a criminal defendant to participate personally in his own defense. The Supreme Court might someday extend its Paula Jones decision to the criminal indictment of a sitting president, but that possibility seems quite remote. In any case, Rotunda’s confident assertions on this point were unsupported and unpersuasive.32

Whatever their merits, Rotunda’s arguments evidently persuaded Ken Starr. Perhaps he wanted to be persuaded. He had devoted nearly five years of his life to investigating and prosecuting Bill Clinton. As a purely psychological matter, it must have been extraordinarily difficult to watch the Republican impeachment effort peter out in the Senate. Even worse, to some of Starr’s subordinates, was the spectacular hypocrisy and arrogance—as they saw it—of the president’s lawyers. They reserved special scorn for the president’s lead attorney, David Kendall. At several points during Clinton’s trial, Kendall pointedly suggested that charges of perjury and obstruction of justice more properly belonged in a courtroom. Was this a taunt? A dare? Perhaps an invitation?33

Ultimately, Starr resisted the temptation to pursue his white whale any further. He has never explained this decision publicly. But privately, Starr indicated that his decision “would be guided by a number of factors, including the impact that an indictment of the President would have on the nation and the Government.” In practical terms, the decision to seek an indictment is ultimately (p.128) the decision to remove—or at least critically disable—a duly elected president. Perhaps Ken Starr eventually came to recognize that such an essentially political decision is better entrusted to an elected body like Congress.34 This had been Leon Jaworski’s view from the beginning. Whatever his motive, Starr’s restraint after Clinton’s Senate acquittal had the salutary effect of ceding final authority to the American people and their representatives.

Alternate Endgames

Future special prosecutors will likely follow the same course. For one thing, there is much practical wisdom behind it. Presidents have an extraordinarily difficult job even under the best of circumstances. It is hard to imagine a president doing that job effectively while under indictment, much less after suffering a criminal conviction. At a minimum, it seems dangerous to empower an unelected special prosecutor—or a randomly selected grand jury—to wield such power. There is also the simple fact that the president can fire a special prosecutor. The costs of exercising this power are normally high, but they are unlikely to exceed the costs of suffering a criminal indictment. Any special prosecutor who pursues this course is unlikely to have a job for long. Knowing this, most special prosecutors are likely to look long and hard for a more palatable alternative.

The special counsel regulations adopted in 2000 supply another reason to doubt that future special prosecutors will seek to indict a sitting president. Those regulations require special counsels to comply with all “rules, regulations, procedures, practices and policies of the Justice Department.” This is generally understood to include the “controlling” legal opinions of the Office of Legal Counsel, which has twice concluded that a sitting president cannot be indicted.

(p.129) The regulations do permit a special counsel to seek an exemption from Justice Department policies in “extraordinary circumstances.” But the attorney general—or acting attorney general, if the attorney general is recused—would need to sign off. Like a special counsel, however, the Attorney General can be fired by the president. This means that two high officials would have to disregard their natural instinct for self-preservation. That is certainly possible but does not seem likely to happen often.35

This does not mean that special prosecutors are powerless to hold the president accountable for violating the law. The approaches debated by the Watergate task force illustrate some tools that remain at a special prosecutor’s disposal even if indictment is off the table. Most obviously, a special prosecutor might ask the grand jury to name the president as an unindicted coconspirator, just as Leon Jaworski did with Richard Nixon. This would signal that a group of randomly selected citizens found probable cause to believe that the president had committed a crime.

Current Justice Department policies discourage the practice of naming unindicted coconspirators, but this policy is not a categorical prohibition. It is a general rule that applies only “in the absence of some significant justification.” With indictment off the table, a special prosecutor might well determine that public accountability justifies naming the president as an unindicted coconspirator. Unlike an ordinary citizen, the president has vast resources at his disposal for responding to the public stigma this would entail. On the other hand that stigma might have some of the same downsides as an indictment.36

A special prosecutor might also ask the grand jury to issue a presentment formally accusing the president of a crime. This could be issued publicly or transmitted secretly to Congress for consideration of impeachment. Less drastically, the special prosecutor could ask the jury to transmit a purely factual report to (p.130) Congress, along with supporting evidence. Both of these actions have historical precedents, including the actions of the Watergate grand jury. But both might violate the rule requiring special prosecutors to provide a “confidential report” to the attorney general at the close of their investigation. Least controversially, a special prosecutor could simply submit a secret report to the attorney general detailing the evidence against the president. Political pressure might well compel the attorney general to make such a report public. Congress could also attempt to obtain it by subpoena. This alternative, unlike the others, is specifically contemplated by the special counsel regulations.37

In all these scenarios, the American people have a central—and daunting—role to play. It is not enough for the people to protect a special prosecutor from interference or removal by a self-interested president. Public pressure must also force Congress to hold the president accountable. The only constitutional mechanism provided for this purpose is the arduous process of impeachment. To remove a president from office requires a simple majority vote in the House of Representatives and a two-thirds majority in the Senate. Needless to say, this is a tall order. No American president has ever been removed by impeachment, though Richard Nixon probably would have been had he not resigned first.

To make matters worse, Congress will often be controlled by the president’s own political party. On the other hand if legislators put party over principle, they can be held accountable at the voting booth. Once again, the last, best hope for the rule of law is not judges or lawyers but democratic politics.

Notes:

(1.) Reuters, “Donald Trump: ‘I Could Shoot Somebody and I Wouldn’t Lose Any Voters,’ ” January 24, 2016; Andrew Crespo, “The Road to United States v. Trump Is Paved with Prosecutorial Discretion,” Take Care, May 21, 2017; (p.221) Susan Low Bloch, “Foreword: Can We Indict a Sitting President?,” 2 Nexus 7 (1997).

(2.) Richard Ben-Veniste & George Frampton, Jr., Stonewall (1977); Bob Woodward & Carl Bernstein, The Final Days: The Classic, Behind-the-Scenes Account of Richard Nixon’s Last Days in the White House (1976).

(3.) Ben-Veniste & Frampton 1977; John Herbers, “Nixon Names Saxbe Attorney General; Jaworski Appointed Special Prosecutor,” New York Times, November 2, 1973.

(4.) Ben-Veniste & Frampton 1977.

(5.) John Hart Ely, Memorandum to Special Prosecutor Archibald Cox on the Legality of Calling President Nixon before a Grand Jury (1973); Ben-Veniste & Frampton 1977.

(6.) Id.; Woodward & Bernstein 1976; Leon Jaworski, The Right and the Power (1977).

(7.) Ben-Veniste & Frampton 1977.

(8.) Id.; Watergate Special Prosecution Force, Memorandum, “Recommendation for Action by the Watergate Grand Jury,” February 12, 1974.

(9.) Id..

(10.) Id.

(11.) Id.

(12.) Ben-Veniste & Frampton 1977.

(13.) Id.

(14.) Id.; Pinkerton v. United States, 328 U.S. 640 (1946); Federal Rules of Evidence 803.

(15.) Ben-Veniste & Frampton 1977.

(16.) Id.; Jaworski 1977.

(17.) Ben-Veniste & Frampton 1977.

(18.) Id.; Fred Emery, Watergate: The Corruption of American Politics and the Fall of Richard Nixon (1994); Woodward & Bernstein 1976.

(19.) Ben-Veniste & Frampton 1977.

(20.) Id.

(21.) Id.

(22.) Id.

(23.) Id.; “Some Lessons in Civics from Two American Juries,” People, March 18, 1974.

(24.) Ken Gormley, The Death of American Virtue: Clinton vs. Starr (2010); Don Van Natta, Jr., “Starr Is Weighing Whether to Indict Sitting President,” New York Times, January 31, 1999.

(25.) Gormley 2010; Van Natta 1999.

(26.) Gormley 2010; Van Natta 1999.

(27.) Gormley 2010; Ben-Veniste & Frampton 1977.

(28.) Van Natta 1999; Ronald D. Rotunda, Memorandum to Independent Counsel Kenneth Starr Re “Indictability of the President,” May 13, 1998.

(29.) David Corn, “Starr’s Right-Hand Man,” Nation, February 4, 1999.

(30.) Rotunda 1998.

(31.) Morrison v. Olson, 487 U.S. 654 (1988); Office of Legal Counsel Memorandum, “A Sitting President’s Amenability to Indictment and Criminal Prosecution,” October 16, 2000.

(32.) Id.; Rotunda 1998.

(33.) Benjamin Wittes, Starr: A Reassessment (2002); Van Natta 1999.

(34.) Id.; Jaworski 1977; Ben-Veniste & Frampton 1977.

(35.) 28 C.F.R. § 600.7.

(36.) Ryan Goodman, “Robert Mueller Has the Authority to Name Donald Trump an Unindicted Co-conspirator,” Slate, October 29, 2017; James B. Jacobs, “Can Trump Be Named as an ‘Unindicted Coconspirator’?,” September 5, 2017; U.S. Attorneys’ Manual 9-11.130.

(37.) Ben-Veniste & Frampton 1977; Watergate Special Task Force Memorandum 1974; Ryan Goodman & Alex Whiting, “An Untold Option for Mueller: Grand Jury ‘Presentment’ as an Alternative to Indicting Trump,” Just Security, August 16, 2017.