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Pop Quiz: Can a President Be Indicted?

By Fred Barbash
Sunday, February 1, 1998; Page C06

Americans like to say that no man is above the law. That is true. But in the case of a sitting president, it's a different law -- with the full difference still undefined. Independent counsel Kenneth Starr, by even contemplating a criminal proceeding against a president, ventures into uncharted constitutional wilderness.

Consider the questions, zany though some may be. Can a president be indicted? Many scholars think not, but the Supreme Court has never been called upon to rule on that issue. Until it does, Starr and a grand jury could not be stopped if it chose to accuse the president of crimes.

If indicted and found guilty, can a president be punished? And if so, how? A jail sentence, visiting hours 9 to 5, would effectively deprive him of his office, usurping the authority that is vested solely in the Congress to remove chief executives. Even putting him on probation would raise serious constitutional issues: Can the head of a coequal branch of government be placed under the supervision of an officer of another branch? How about hooking up a president to one of those new-fangled electronic monitoring devices?

Such implausible potential consequences are among the reasons many scholars think indictment impermissible.

But what they say doesn't really count. What counts is what the Supreme Court might say, and this we don't yet know. Given the opportunity to opine on the question when Richard Nixon was named as an unindicted co-conspirator in the Watergate scandal, the justices ran for cover. The court said in U.S. v Nixon (the 1974 Watergate tapes case) that because the co-conspirator issue was not relevant to deciding whether or not Nixon had to turn over the tapes to the special prosecutor, it need not be addressed.

It need not be addressed by Starr either. If he finds criminal conduct by the president, he could simply turn over his evidence to the House Judiciary Committee, where impeachment proceedings commence.

That was the course taken by Leon Jaworski, special prosecutor in the Watergate case. (Jaworski said later that if he were asked if Nixon "could receive a prompt, fair trial, I would have to answer, as an officer of the court, in the negative.")

Starr would probably take Jaworski's route, but he does not have to.

The Constitution itself only says that the president "shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors" at the hands of the Senate. It says the same about federal judges, however, who have been indicted, tried and convicted in the courts without objection from the high court.

And, for the most part, the Supreme Court has been quite willing to subject presidential actions to judicial intervention. It said in 1974 that Nixon had to give up the Watergate tapes to a special prosecutor. It has, since the earliest days of the Republic, allowed the federal judiciary to declare official acts of the president illegal. If the judiciary may review the legality of "the President's official conduct," the justices said in allowing Paula Jones's sexual harassment case to proceed, "and if it may direct appropriate process to the President himself, it must follow that the federal courts have power to determine the legality of his unofficial conduct" -- such as " 'abhorrent' sexual advances."

On the other hand, as Justice John Paul Stevens has written for the court, the president is a "class of one."

In many of his activities, he is indeed above the law, not just because lawsuits might be inconvenient to the commander-in-chief, but because the presidency is a separate branch of government protected by the Constitution from being overly "impaired" in its functions by individuals or by the judiciary.

The Supreme Court, for example, has granted the chief executive absolute immunity from private suits seeking money damages for his official acts so as not to render him "unduly cautious in the discharge of his official duties."

In criminal matters, the president enjoys some protection as well. While the Watergate special prosecutor won the battle over the tapes, the presidency may have won the war when the court acknowledged that there is an "executive privilege" to withhold information from the courts, but that it is not "absolute" or "unqualified."

And even while permitting the Jones suit, the court made it clear that the president deserves special consideration. Trial judges presiding over suits against a president must give "'the utmost deference to Presidential responsibilities,'" Justice Stevens wrote for the court, providing the grounds Thursday for U.S. District Judge Susan Webber Wright to exclude the Monica Lewinsky matter from the Paula Jones case.

". . .As for the case at hand," said the Supreme Court of the Jones case, "if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount" of the President's time.

© Copyright 1998 The Washington Post Company

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