Could Cheney be indicted?

It's an academic question, probably. Here's the academic answer.

Published October 25, 2005 7:06PM (EDT)

Can the vice president be indicted? It's probably an academic question -- despite the report in today's New York Times, we haven't seen evidence establishing that Dick Cheney violated any laws in the Valerie Plame case -- and here's the academic answer: Yes, or at least probably.

The Constitution says that sitting presidents and vice presidents can be removed from office through impeachment, but it doesn't say that they can't be indicted too. Time was, there was a pretty broad consensus that presidents, at least, were immune from criminal prosecution. That's the position then Solicitor General Robert Bork took in a legal brief he filed on behalf of the government in 1973, and it's the position that many of Bill Clinton's supporters took during the investigations into Whitewater and the Monica Lewinsky affair. Ken Starr apparently thought he had the authority to indict Clinton, but he didn't test his theory.

As for vice presidents? There is precedent for indicting one: Aaron Burr was indicted while serving as vice president, but he avoided prosecution by staying away from the two states -- New York and New Jersey -- where indictments had been brought against him. And there's a legal argument for why a vice president can be indicted even if a president can't be. As Bork argued in that 1973 memo -- he was trying to make the case that Spiro Agnew could be indicted even as he sought to protect Richard Nixon from ever having to face a similar fate -- presidents can't be indicted because subjecting them to criminal prosecution would make it all but impossible for the executive branch to operate. The balance is different when it comes to vice presidents, Bork said: "Although the office of the vice presidency is of course a high one, it is not indispensable to the orderly operation of government. There have been many occasions in our history when the nation lacked a vice president, and yet suffered no ill consequences." Bork noted that a vice president has only three constitutional responsibilities -- to replace the president, to make a determination that the president is unable to discharge his duties and to preside over the U.S. Senate -- and that none of these functions would be "substantially impaired" if the vice president were subjected to a criminal prosecution.

In a memo written in 2000, the Justice Department's Office of Legal Counsel reiterated and seemed to adopt the analysis Bork had put forth nearly three decades earlier.

Could the Alberto Gonzales Justice Department reach a different conclusion? Yes. Would the federal courts have the final word anyway? Yes. Will we ever get to that? Probably not. As we said at the outset, we haven't seen evidence yet that Cheney engaged in any criminal wrongdoing in the Plame case.

But before we consign this question to the world of law review articles and moot court competitions, let's take note of this. Dan Froomkin, who first walked us through the immunity-to-indictment question last week, notes this week that there's something we all may have missed in today's Times story about Cheney's role in Plamegate. When the Times first reported last summer on Cheney's meeting with Patrick Fitzgerald, it said that the vice president hadn't been interviewed under oath. Today's story says that he was.

Does it matter? Not if Fitzgerald is considering an obstruction of justice or false statements charge, which wouldn't turn on whether the defendant was under oath. As for perjury? The sworn versus unsworn distinction wouldn't matter there, either -- so long as Dick Cheney told the truth.

Update: The New York Times posted a correction on Wednesday, Oct. 26, in which it said that Cheney was not, in fact, under oath when Fitzgerald interviewed him.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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