After Mueller Testimony, A Review of Sitting Presidents and Indictment

former presidents nixon and clinton give context to mueller findings

By Jonny Lupsha, Wondrium Staff Writer

Former Special Counsel Robert S. Mueller, III testified to Congress about Russia, Donald Trump, and the 2016 election, The New York Times reported Wednesday. His investigation about Russian interference into the election looked at members of the Trump campaign, including President Trump himself. But can a sitting president even be indicted of a crime?

Cherry blossoms next to The Presidential White House
Although the United States doesn’t have an example of indicting a president on criminal charges, a sitting president or vice president are not wholly above the law, but are subject to it. Photo by Keith J Finks / Shutterstock

During his seven-hour session in front of the House Judiciary and Intelligence Committees, Former Special Counsel Robert Mueller discussed the 448-page report he submitted to Congress in April. The “Mueller Report” was the result of a years-long investigation into Russia’s interference in the 2016 general election and its alleged involvement with members of the Donald Trump presidential campaign up to and including the president himself. Mueller and his team determined that there was ultimately no collusion between Russia and President Trump.

However, according to the NYTimes article, Mueller and Representative Ted Lieu (D-CA) discussed the Justice Department’s Office of Legal Counsel and its Nixon-era opinions regarding presidential indictment in general and as it may pertain to President Trump for obstruction of justice charges, whether in office or after his presidency. Since the 1970s, whether discussing Richard Nixon or Bill Clinton or Donald Trump, the question has arisen: If a sitting president were proven guilty of a crime, can he or she be indicted for it? We have some similar precedents that may lead us to an answer.

Whitewater and Spiro Agnew

In 2017, the NYTimes utilized the Freedom of Information Act and obtained a memo drafted over 20 years ago by independent counsel Kenneth Starr’s office during the Whitewater investigation of then-President Bill Clinton. The 1998 memo suggested that a president could indeed be indicted for a crime. So, can a sitting president be indicted? And what does either answer mean for the rule of law in the United States? Paul Rosenzweig, J.D., who was Kenneth Starr’s senior counsel during Whitewater and is a former federal prosecutor, offered his views on the subject in material he produced for The Great Courses.

“The first and most obvious answer to all these questions is that nobody has any firm idea,” said Professor Rosenzweig, who is currently a Professorial Lecturer in Law at The George Washington University Law School. “No sitting president has ever been indicted, and Lord knows we all hope it won’t ever happen in the future so that we test this question out in court.” He added that even if a case like that went to the Supreme Court, it may not give us a clear answer—a five to four ruling on an indictment, for example, is narrow enough that it wouldn’t reflect any universal views of right or wrong in the country.

The case has a similar precedent of a successful indictment, though it pertains to the vice president. Professor Rosenzweig also mentioned the 1973 indictment of Vice President Spiro Agnew for crimes of tax fraud and corruption that took place when he was governor of Maryland. “Agnew fought the investigation in public,” he said. “He asserted that a sitting vice president could not be indicted—that the investigation of his conduct, if there was to be any at all, should be done by the House of Representatives. In other words, that the issue was political, not legal.” Neverthless, Agnew was indicted in federal court for tax evasion, where he pleaded no contest.

Is the President a “Class of One?”

A vice president has been indicted, but what about the highest office in the land? Is a sitting president a “class of one” immune to certain laws?

During their times in office, former Presidents Richard Nixon and Bill Clinton faced questions of both impeachment and indictment of crimes. President Nixon’s scandal revolved around surveillance of the Democratic National Convention at the Watergate Hotel and the subsequent cover-up. As Professor Rosenzweig explained it, it was determined that Nixon had a taping system in the Oval Office that had recorded conversations he had with senior staff members, including those already facing charges. When prosecutors requested the tapes, Nixon’s lawyer, James D. St. Clair, refused, saying that the president wished him to express that the president was only subject to the court of impeachment and nothing else.

“In the language of the law, [St. Clair] said that Nixon had an absolute executive privilege that protected the discussions he had with the government officials who advised the president,” Professor Rosenzweig said. “The Supreme Court unanimously rejected that proposition. Instead of recognizing an absolute executive privilege, it held that presidential privilege as to materials subpoenaed for use in a criminal trial was a qualified privilege.” Nixon’s confidentiality claims were deemed inefficient, the tapes were turned over, and the incident showed that the president isn’t entirely above the law.

Bill Clinton’s Civil Suit

In further support of this view, Paula Jones filed suit in 1994 alleging that President Bill Clinton sexually harassed her three years earlier, before his presidency. “Initially, the district court in Arkansas held that a sitting president could not be sued in a civil case and deferred the case until after Clinton’s term of office might end, but when the case reached the Supreme Court, that court ruled unanimously that the president could be sued,” Professor Rosenzweig said. “It said that the president, like any official, was subject to the same laws—civil laws, that is, not necessarily criminal laws—that governed all Americans.”

Beyond the example that a sitting president isn’t above all laws, the Paula Jones case made an entirely different point almost by accident. “Perhaps more important, the justices rejected the argument that the lawsuit would be a distraction to a sitting president, saying that they were confident that the courts could manage the case so that it didn’t interfere with the president’s constitutionally assigned role,” Professor Rosenzweig said.

Nobody wishes for a president of the United States of America to commit a crime of any kind. However, in case the issue ever does come up, lawmakers will likely look back to these examples to make their arguments. Ken Starr’s memo indicates a possible endorsement of presidential indictment. Vice President Spiro Agnew was successfully indicted under criminal charges. The Supreme Court ruling over Presidents Richard Nixon and Bill Clinton both showed that the president isn’t entirely above the law, nor has total executive privilege. Bill Clinton’s civil suit by Paula Jones even illustrated that the Supreme Court wouldn’t block a suit against a sitting president on the grounds that it would disrupt his duties to the nation as the president.

Although the United States doesn’t have an example of indicting a president on criminal charges, all three officials—Agnew, Nixon, and Clinton—show that the president and vice president are not wholly above the law but are subject to it.

Paul Rosenzweig, J.D., contributed to this article. Mr. Rosenzweig is a Professorial Lecturer in Law at The George Washington University Law School

Professor Paul Rosenzweig contributed to this article. Paul Rosenzweig is a Professorial Lecturer in Law at The George Washington University Law School. He earned his J.D. from the University of Chicago Law School and then served as a law clerk to the Honorable R. Lanier Anderson, III of the United States Court of Appeals for the Eleventh Circuit.