A memorandum prepared for Whitewater Independent Counsel Ken Starr by then-University of Illinois Law Professor Ronald D. Rotunda asserting that a sitting President may be impeached has surfaced. Rotunda, now the Doy and Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University, had also served as assistant majority counsel for the Watergate Committee
Rotunda’s opinion relies, in part, on a footnote from Nixon v. Sirica, 487 F.2d 700, 711 n. 50 (D.C. Cir., 1973):
Because impeachment is available against all “civil Officers of the United States,” not merely against the President, U.S.Const. art. II, § 4, it is difficult to understand how any immunities peculiar to the President can emanate by implication from the fact of impeachability.
Rotunda stresses that nobody is above the law and to give Congress the sole power to prosecute the President would violate the separation of powers.