Clinton, Out of Reach nytimes.com
Meanwhile, on the subject of the dreaded NYT "self-leak" of the Starr indictment story, we have this from the op-ed page. A little innuendo on the leak issue, but I'm still confused on how the Times was supposed to "self-leak" this, or how the WH was supposed to know that Starr was considering this. Everybody against Clinton here seemed to think it was a good idea on Sunday. . .
Again, quoted in full, I don't know if the url will stay accessible.
By ROBERT H. BORK
One thing is obvious, and another is highly probable, about the leaked reports that Kenneth Starr may have considered using his constitutional power to indict President Clinton while still in office. It is obvious that Mr. Starr would be irresponsible if he did not consider Mr. Clinton's vulnerability to the criminal process. It is almost certain that so long as he holds office, the President cannot be reached by criminal law, although no Federal court has ever ruled on the question.
In assessing leaks, the rule is to ask who benefits.
Mr. Starr and the Republicans do not; they are embroiled in another tempest that they do not need. The leaked report did not even say when he considered the possibility of indictment.
No one should be surprised if the independent counsel examined the issue of indicting Mr. Clinton. Any careful prosecutor would examine all options whe he has evidence, as Mr. Starr
does, that the President committed perjury and obstructed justice. Leon Jaworski, the second Watergate special prosecutor, considered indicting Richard Nixon but rejected the idea. I would be surprised if Archibald Cox, the first special prosecutor, did not also consider that possibility. Indeed, someone wrote "constitutional problem?" in the margins of the memorandum outlining the case against Nixon that the United States Attorney's office handed over to Mr. Cox. The Framers' discussions assumed that a Presidential impeachment would precede any criminal trial. Article I, Section 3 -- "the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law" -- reflects that assumption. The reason is that the President, uniquely responsible for the affairs of the United States, should not be taken from his duties unless shorn of them by the Senate or by the expiration of his term.
The scope of the President's unique duties is shown by Article II: the whole "executive Power" is vested in the President, including the powers of the Commander in Chief, the power to command the executive departments, the power and responsibility to execute the laws, and the powers shared with the Senate to make treaties, appoint ambassadors and appoint judges and Supreme Court justices.
The singular importance of the office is demonstrated by the 25th Amendment, which provides for a replacement when a President becomes physically or mentally ill. There is, significantly, no provision for replacing any other incapacitated member of any of the branches. They may be indicted (Vice President Spiro Agnew) and tried (Judge Otto Kerner, for example) while still in office.
The capstone, however, is that the Framers, who provided such an elaborate mechanism for removing a President through impeachment (a process involving the House, Senate and Chief Justice), could not have contemplated that the entire, solemn procedure could be short-circuited by a jury of 12 citizens selected virtually at random.
The Supreme Court's decision in the Paula Jones case is not to the contrary. The schedule of a civil action can accommodate the President's other obligations, and testimony can be videotaped. There is not the severely disruptive prospect of imprisonment that a criminal trial creates.
The weight of the evidence, therefore, supports the conclusion that impeachment and conviction must come before indictment and trial.
Also from the awful liberal press spin division, this sarcastic piece from Maureen Dowd:
The Secret Letter nytimes.com |
