Scandal File: The Indictment Option

EVER since the Lewinsky scandal broke, reporters and legal scholars have uniformly declared that a sitting President may not constitutionally be indicted. National Public Radio’s Nina Totenberg, among others, reported that even Ken Starr’s office holds this view, apparently based on a Department of Justice position developed by then-Solicitor General Robert Bork during the Nixon Administration.

But a careful examination of the issue reveals that the case against pre-impeachment indictment of a President is far from clear-cut. Indeed, when Republican Presidents were in office, liberal scholars weren’t rushing to embrace Bork’s view.

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Daniel E. Troy

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EVER since the Lewinsky scandal broke, reporters and legal scholars have uniformly declared that a sitting President may not constitutionally be indicted. National Public Radio’s Nina Totenberg, among others, reported that even Ken Starr’s office holds this view, apparently based on a Department of Justice position developed by then-Solicitor General Robert Bork during the Nixon Administration.

But a careful examination of the issue reveals that the case against pre-impeachment indictment of a President is far from clear-cut. Indeed, when Republican Presidents were in office, liberal scholars weren’t rushing to embrace Bork’s view.