The more pertinent question, then, is whether a sitting president can be charged, even if the trial itself wouldn’t take place until after his term ends. The Office of Legal Counsel in the Justice Department acknowledged in 2000 that nothing in the text of the Constitution or evidence of the framers’ intent would preclude a grand jury indictment of a sitting president.

The office nevertheless concluded that an indictment would be unconstitutional in light of a powerful functional consideration: Because a trial during the president’s term would be precluded, an indictment would subject the president to the “stigma and opprobrium” of being branded an accused criminal without a timely opportunity to respond to his accusers in a court of law — a sword of Damocles that could undermine the president’s “respect and stature both here and abroad” and thus impact his ability “to act as the nation’s leader in both the domestic and foreign spheres.”

The Office of Legal Counsel was right that this is a serious concern, but it doesn’t follow that an indictment would be unconstitutional. The Justice Department has never disputed, for instance, that a grand jury could name a president as an unindicted co-conspirator — as it did with Richard Nixon in 1974 — even though the opprobrium of such a designation shouldn’t be materially more damaging than the stigma of a pending indictment.

Moreover, as Justice John Paul Stevens wrote for eight members of the Supreme Court in the Paula Jones case in 1997, which permitted a sexual harassment suit against President Bill Clinton to go forward while he was in office, the possibility that federal judicial proceedings “may significantly burden the time and attention of the chief executive” isn’t sufficient to establish a constitutional violation. If that’s the case in the context of an embarrassing civil suit, it’s hard to see why the looming shadow of criminal charges — especially for conduct that occurred before the president assumed office — would have a more acute functional impact that crosses some constitutional line.

Therefore, if there ever were an extraordinary case in which immediate charges were essential — in particular, if a president committed a heinous crime that demanded justice and he refused to waive what might otherwise be an effective statute-of-limitations defense — the attorney general should overrule the Office of Legal Counsel’s conclusion that the Constitution categorically prohibits an indictment during a president’s term. (Although I worked at the Office of Legal Counsel in 2000, I had no involvement in that opinion.)