While the public is widely split over the escapades of President William Jefferson Clinton, there is a significant underlying issue which may well surface over the next two months. That question is whether a grand jury can indict a sitting president.

The only precedent we have from history relates to the duel between Vice President Aaron Burr and Alexander Hamilton in 1804. Burr killed Hamilton in a duel and was subsequently indicted by both New York and New Jersey. There was never an appeal of those indictments. As a result, there are no court decisions relating to the constitutionality of the indictments. The indictments just seem to have been forgotten or lost in the political popularity of Burr. Even though Burr never personally returned to New York or New Jersey, either while vice president or after finishing his term.

After the duel, Burr fled to Philadelphia and then to an island off the coast of Georgia before returning to preside over the Senate in the closing days of his term as vice president.

Scholars are split on whether an indictment against the president or vice president can be pursued while they are actually holding office. Opponents argue that the impeachment process, as provided in the Constitution, is the only way to handle criminal charges against a president or vice president. Those who believe the Constitution permits such indictments argue that kings are not above the laws of the United States. Framers of the Constitution seemed to be firm on that point.

Arguing in favor of being able to impose criminal sanctions against the Executive Branch is Hofstra Law Professor Eric M. Freedman. In a March 10, 1997 Legal Times article, Professor Freedman declared, "There is an important symbolic value to the affirmation that the president is merely an ordinary citizen temporarily delegated to perform certain functions but otherwise amenable to the same constraints as anyone else. A contrary conclusion would not only feed the imperial delusions to which too many high officials of this century have succumbed, but would make a mockery of our proud claim to have instituted a government of laws rather than men."

Stating his position in another way, the president should not be above the laws which he is pledged to uphold. While not a criminal charge, the Supreme Court of the United States did rule against President Clinton in the Paula Jones case saying that the civil case could proceed even while the president is in office. It seems to me that the criminal law would not be treated differently.

Beyond indictment or impeachment, we will hear a great deal, in the next few months, about executive privilege. If you recall, President Nixon tried to assert executive privilege back in the Watergate days. He failed with the Supreme Court declaring that executive privilege can only be asserted when the communications relate to the conduct of official business. Covering up the Watergate break-in was hardly official business.

It should follow that sex in the Oval Office or efforts to cover up that sex are not protected by executive privilege. It remains to be seen whether Professor Freedman's thesis about indicting a sitting president is correct. The next few months will be most interesting.