Ronald Rotunda writes: Nearly two decades ago, then-independent counsel Kenneth Starr asked me to evaluate whether a federal grand jury could indict a sitting president — in that case, Bill Clinton. My answer — that such an action would be permissible — was recently unearthed in response to a Freedom of Information Act request from the New York Times, and it may have relevance for a new special counsel and the current president.
My fundamental conclusion remains intact: Nothing in the Constitution would bar a federal grand jury from returning charges against a sitting president for committing a serious felony. But — and this is a big but — differences between the Clinton situation then and the investigation of President Trump now mean that where Starr had the authority to indict Clinton if he chose, Mueller most likely does not possess the same power.
On the underlying question of whether the Constitution bars indictment of a sitting president, no previous case is directly on point. The Justice Department has taken a different view than the conclusion I reached — both beforehand, during the Watergate investigation, and afterward, at the end of the Clinton administration. But the history and language of the Constitution and Supreme Court precedents suggest that the president does not enjoy general immunity from prosecution. [Continue reading…]