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.