The indictment option.

Mr. Troy is a lawyer in Washington, D.C., and an associate scholar at the American Enterprise Institute. He served in the Department of Justice's Office of Legal Counsel during the Reagan and Bush Administrations, and he clerked for Judge Robert H. Bork on the D.C. Circuit Court in 1983 - 84.

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.

In the 1988 edition of his influential constitutional-law treatise, liberal Harvard law professor Laurence Tribe wrote: "The question must be regarded as an open one, but the burden should be on those who insist that a President is immune from criminal trial prior to impeachment and removal from office." (Mysteriously, Professor Tribe has not recently been heard from on this subject.) Similarly, in an article in the Fall 1992 issue of the Hastings Constitutional Law Quarterly, Hofstra law professor Eric Freedman concluded: "Legal decisionmakers should reject the position that the President should have a blanket immunity from criminal prosecutions."

The text of the Constitution does not resolve the issue. It states that "Judgment in the Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of Honor, Trust or Profit of the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment according to Law." The provision anticipates, and explicitly permits, post-impeachment indictment.

But neither it, nor any other provision in the Constitution, explicitly grants the President immunity from criminal prosecution prior to impeachment. Certainly there is no presidential counterpart to the Constitution's speech-and-debate clause, which immunizes members of Congress from liability for certain matters that may arise out of their official duties.

The issue of pre-impeachment immunity was discussed during the debates over the ratification of the Constitution. Some agreed with Alexander Hamilton's argument in the Federalist Papers that a federal officeholder must be impeached and removed from office before being subjected to indictment. Others -- like James Iredell, later a Supreme Court Justice -- maintained that federal officers "may be tried by a court of common law . . . for common-law offenses, whether impeached or not." Iredell continued: "No man is better than his fellow citizens, nor can he pretend to any superiority over the meanest man in the country."

Historical experience seems to suggest that a sitting President may be indicted. Aaron Burr, while Vice President, was indicted for murder both in New York and in New Jersey. No one suggested at that time that Burr was immune from prosecution on those charges. Many federal judges and lower officeholders have been indicted before (and, in some cases, in lieu of) being impeached.

But the question remains: Is the President different from all other federal officeholders? The Supreme Court's decision in Clinton v. Jones strongly suggests that, with respect to this issue, he is not. In that case a unanimous Court rejected President Clinton's argument that a President was immune from a civil suit during his term in office, declaring, "We have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity."

More tellingly, citing the historical evidence, the Jones decision stated: "With respect to acts taken in his 'public character' --that is, official acts -- the President may be disciplined principally by impeachment, not by private lawsuits for damages. But he is otherwise subject to the laws for his purely private acts." The Court also roundly rejected the arguments that being involved in such litigation would take up too much of the President's time, and that suits would be filed against the President simply to harass him.

IS a criminal indictment any different in these respects from a civil suit? Some might argue that a criminal indictment raises different separation-of-powers concerns because it is the government, and not a private party, that is bringing the action. But, just as there is no textual or historical basis for giving the President immunity from civil actions, there is similarly no basis for declaring him immune from criminal indictment. If it is important to show that the President is not above the law with respect to civil wrongs, how much more important is it to uphold the rule of law when the President is accused of criminal behavior?

Others arguments against indictment aren't convincing either:

-- Some have suggested that the indictment of a President would be null and void because it is up to the President to execute the law, all prosecutors exercise that executive power derivatively from him, and it is nonsensical to believe that the President can, in effect, indict himself. But this does not resolve the question of whether the President is immune from pre-impeachment indictment for a state offense.

-- Another question raised by critics of the argument that a President may be indicted is: What would happen if a sitting President were convicted? Could he run the United States from a jail cell? This scenario seems rather fanciful because, in all likelihood, any such President either would be forced to resign, or would quickly be impeached.

-- Judge Bork raises yet another argument, which is that the President has the power to pardon anyone accused or convicted of "offenses against the United States" and thus could render any conviction nugatory by pardoning himself. But, as Professor Freedman notes, this position is "logically unconnected to the issue of whether the officeholder has immunity while in office."

More importantly, the entire notion of an independent counsel, which the Supreme Court found to be constitutional in Morrison v. Olson, presupposes that the independent counsel can wield executive power in a manner that is independent from the President. Of course, if the President is constitutionally immune from criminal prosecution, no act of Congress can override or negate that immunity. But the Democratic Congress that initially promulgated the act in 1978 appears to have believed that the President was not immune from prosecution.

For one thing, under the act, subjects who, having been arraigned, are not eventually indicted are entitled to reimbursement of their attorney's fees. If the President can't be indicted, then his entitlement to reimbursement would be automatic. Second, although the act does provide for the independent counsel to forward "substantial and credible" evidence for impeachment to the House of Representatives, nothing in the act suggests that that is the sole function of the independent counsel. To the contrary, the fact that the President is explicitly covered by the act strongly suggests that Congress in 1978 believed that he could be indicted.

Why have legal scholars essentially ignored this evidence? Liberal legal scholars, who usually read the Constitution more flexibly than most conservatives, have no interest in attacking a Democratic President. And conservative legal scholars, many of whom served in the executive branch under a Republican Administration, are generally hawkish on executive power, even when wielded by a Democrat. Also, many, no doubt, are understandably reluctant to oppose a position initially developed and championed by Judge Bork.

Thus, while the evidence does not plainly establish that the President can be indicted, it does not establish conclusively that he may not. If the evidence suggests that President Clinton has violated criminal laws, Ken Starr is duty bound, at the very least, to undertake his own independent inquiry to assess the constitutionality of indicting the President. (The work of an independent counsel is never done.)

Professor Freedman advances one final, powerful theoretical argument for subjecting the President to criminal indictment. He writes: "Rather than degrading the office, as some have argued, the incumbent's amenability to prosecution enhances the reputation of the Presidency and reflects the nation's hopes: a good citizen will undertake the position as a public service, rather than as an opportunity for personal aggrandizement, and will therefore glory in the known constraint of acting lawfully."

President Clinton, apparently, has been glorying in other aspects of the office.