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The president can be indicted, newly discovered legal memo says

A conservative constitutional-law expert made the argument decades ago, during the investigation into President Clinton.
Donald Trump (Getty Images)

As the investigation into President Trump and Russia broadens, a question has been raised: If crimes are uncovered, could Trump be indicted? The widespread conclusion is no; a sitting president is immune from prosecution.

But a decades-old legal memo, written by a conservative, says he can.

The memo, recently uncovered by the New York Times, was commissioned by independent counsel Kenneth Starr during the investigation into President Bill Clinton in the '90s. Starr hired a conservative constitutional law and ethics expert, Ronald Rotunda, to write the memo in spring 1998, after a grand jury concluded there was enough evidence to indict Clinton.

“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,” the memo reads. “In this country, no one, even President Clinton, is above the law."

Using that argument, the memo also concluded that it was constitutional to try the president even for minor, unimpeachable crimes without waiting for the end of his term, because statutes of limitation for some offenses would run out.

Ironically, the example Rotunda gave was the president punching a heckler at a rally.

Ultimately, Starr chose to let impeachment hearings go forward instead of recommending indictment.

The Constitution doesn't specifically say that a sitting president can't be prosecuted. The courts haven't ruled on it. But the belief is based on the Constitution's "structural principles"  — a trial would prevent the president from fulfilling the constitutional powers of the executive branch. That would result in a crisis of governance, preventing the government from functioning as it's intended.

But Rotunda argued that the 25th Amendment — a guideline to replace the president in case he becomes incapacitated, which has also been mentioned frequently in reference to Trump — was intended to prevent the executive branch from being compromised in that way.

This is not the only time the memo's conclusion has been expressed. In 1974, the special counsel on Watergate received a memo from his staff saying it was possible to indict President Richard Nixon.

In the Trump/Russia investigation, if special counsel Robert Mueller uncovers enough evidence to indict President Trump and wants to empanel a grand jury, he must follow Justice Department procedures to move forward. One of those specifies the person who could overrule him: Deputy Attorney General Rod Rosenstein, who was appointed by Trump.