Independent counsel Kenneth Starr, I learn, has commissioned a study of whether President Clinton can constitutionally be indicted before or in the absence of an impeachment inquiry. It looks as though the answer will be "yes."
Sources emphasize that Mr. Starr is far from concluding that the president has committed a criminal act, but he wants to be prepared in the event that evidence leads him in that direction.
The Independent Counsel Act provides that he will report to the House of Representatives any "substantial and credible evidence" that the president may have committed a crime. It is not clear that he is limited to such a referral.
Starr's mandate, as expanded on Jan. 16 by an appeals court supervisory panel on the recommendation of Attorney General Janet Reno, authorizes him to investigate whether "Monica Lewinsky or others suborned perjury, obstructed justice, or intimidated witnesses" in the Paula Jones harassment suit against Mr. Clinton. The "others" obviously include Clinton.
Starr is getting advice from at least two legal scholars. Prof. Samuel Dash, of Georgetown Law School, who was chief counsel to the Senate Watergate committee, has been serving as his ethics adviser. Professor Dash says his services have now been narrowed to investigations that "might involve the president and the first lady." He declines to elaborate.
Prof. Ronald Rotunda of the University of Illinois, a Senate Watergate lawyer as well, also is serving, separately, as a consultant to Starr. He is understood to be more specifically concerned with the question of whether indictment and trial could precede impeachment. He declines to discuss his role.
But the Illinois professor is a recognized authority in the field, being coauthor of a three-volume treatise on constitutional law that includes an exhaustive section on impeachment. In that, he concludes that indictment and trial of a president could constitutionally take place before the initiation of the impeachment process.
The theory, untested in the courts, goes this way: The Constitution says someone convicted by the impeachment process "shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law."
It does not say criminal action must await the removal of the official from office. Immunities not specified by the Constitution are assumed not to exist.
The leading precedent dates back to President Nixon, but, despite the conventional wisdom, it may not be applicable. Mr. Nixon was designated by the Watergate grand jury on March 1, 1974, as an unindicted co-conspirator in a conspiracy to obstruct justice. This after special prosecutor Leon Jaworski advised the grand jury that indicting him while he was still in office would probably be unconstitutional.
But research by Starr's advisers into the background memoranda that accompanied Mr. Jaworski's opinion made clear that it was meant to apply only to Nixon's specific situation. The situation was that House impeachment proceedings were already under way and, under such circumstances, indictment might suggest double jeopardy. The Supreme Court might find that he was being denied a fair trial.
Consequently, the grand jury listed Nixon - secretly - as an unindicted co-conspirator with the expectation that he would be indicted after being forced out of office. Jaworski's files on the Nixon coverup were turned over to the House Judiciary Committee through Judge John J. Sirica. In the end, the obstruction charge became one of three counts in the Bill of Impeachment voted by the Judiciary Committee.
See what happens first
Starr could be expected to follow Jaworski's example if impeachment proceedings were under way when he completed his investigation, but Henry Hyde, chairman of the Judiciary Committee, has said he wants to see what Starr comes up with before addressing the question of impeachment.
Thus, the possibility exists that there will be no impeachment process started when Starr completes his investigation. Under the circumstances, Starr may feel authorized - perhaps even obligated - to seek grand jury action on any evidence he has developed of presidential involvement in obstructing justice.
There is no law and no court ruling to guide a decision on this delicate constitutional question. Any indictment of the president would surely be contested up to the Supreme Court. But it is interesting that Starr is studying his options.
* Daniel Schorr is senior news analyst for National Public Radio.