To indict or not to indict? The high court should answer

I have read the U.S. Department of Justice's memo from 2000, titled "A Sitting President's Amenability to Indictment and Criminal Prosecution." It reviewed the 1973 Watergate-era memo which concluded there is no constitutional bar to indictment, trial and conviction, but that balancing the separation-of-powers issues, the president should not be tried and convicted. Interestingly, that memo did not rule out indictment: "[I]t is arguable that ... it would be possible to indict a President, but defer trial until he was out of office."

The 2000 memo then reviewed the three post-1973 memo decisions by the U.S. Supreme Court related to the issue: U.S. v. Nixon (the Watergate tapes decision), Nixon v. Fitzgerald (finding that the president is immune from civil suit for acts during presidency -- a run-of-the-mill civil immunity for government officials decision), and Clinton v. Jones (finding that civil suits are allowed against presidents for pre-office conduct).

Re-applying the balancing test, which the Supreme Court had validated in those three decisions, the 2000 memo looked to (1) the burdens of actual incarceration; (2) public stigma by the initiation of criminal proceedings; and (3), the mental and physical burdens of preparing for and sitting for trial.

The memo found it inconceivable to imprison a sitting president. (I agree.) It then went beyond the 1973 memo and determined that the stigma of a charge alone was sufficient tip the balance in favor of not being able to indict the president. (I disagree, particularly because in our media-saturated society, credible criminal conduct will be known and widely disseminated and be just as stigmatizing as a charge.) The burdens of preparing for and sitting for trial are substantial (which is why I favor "indict and wait"). The memo argues the president should not have to waive his speedy trial rights. Just so, but he can. Balanced against that are: that statutes of limitations might run; the government's evidence may fade over time; and respect for the rule of law -- the president is not above it. (I believe these considerations are considerable and weighty.)

The memo eschews anything other than a categorical rule that the president is immune form indictment while in office. I think that is subject to scrutiny in a situation akin to what is emerging where the criminal acts paved the way to election. (Suppose the president had bribed members of the Electoral College, but enjoyed the support of 33 senators (not beyond the pale)?)

While I do not expect either Special Counsel Robert Mueller or the Southern District of New York will indict the president, I would like to see an indictment and let the Supreme Court rule, once and for all.