This article argues that the new legal status - the "specially investigated President" - conferred upon recent presidents reflects an unprecedented change in the criminal investigation process of the President. Although recent presidents have experienced formal criminal investigations, each have used creative and legitimate ways to escape indictment, trial, or impeachment. By investigating President Bush and President Clinton's ability to successfully avoid prosecution, this article presents an analytical framework to explain the issues surrounding the "specially investigated President," and offers suggestions on how to reform the process.
In his analysis, the author illustrates the tension between opposing viewpoints regarding the president's vulnerability to legal prosecution. From one perspective, the president has no special immunity, privilege, or power to stop the prosecution process. From the opposite perspective, the president has the political right to protect his office. Tracing the development of the new politic-legal status of the "specially investigated president", the author uncovers the elements of Congress' new presidential investigation as well as its constitutional implications. Finally, recognizing that the new paradigm for presidential investigations is here to stay, the author advances several principles to guide a reformation of the process and reduce the stress the legal accusation process places on the president, the political-legal process, and the public.
The Specially Investigated President, 5 U. Chi. L. Sch. Roundtable 143 (1998)