Can A Sitting President Be Arrested Under State Law?

The question of whether a sitting president can be arrested or prosecuted has been a topic of much debate in the United States. While some argue that a president should be immune from prosecution to prevent obstruction of their official duties, others believe that such immunity sets a dangerous precedent that places the president above the law. The Supreme Court's decision in Trump v. United States in 2024 granted presidents absolute immunity from criminal prosecution for official acts, but what about state law? Can a president be arrested under state law, or are they immune from prosecution on a state level as well?

Presidential immunity

In 1973, the OLC, amid the Watergate scandal, issued a memorandum concluding that it is unconstitutional to prosecute a sitting president. The OLC's argument was based on the idea that the president, as the symbolic head of the nation, cannot be impeded by criminal proceedings without hampering the entire governmental apparatus. This memorandum was not a legal ruling, but it was binding within the Department of Justice.

The Supreme Court has also weighed in on the issue of presidential immunity. In Nixon v. Fitzgerald (1982), the Court ruled that the president has absolute immunity from civil damages actions for conduct within the "outer perimeter" of their duties. However, in Clinton v. Jones (1997), the Court decided against temporary immunity for sitting presidents from suits arising from pre-presidency conduct.

In 2024, the Supreme Court ruled in Trump v. United States that presidents have absolute immunity from criminal prosecution for official acts within their "exclusive sphere of constitutional authority". This ruling granted Trump, and future presidents, immunity for a wide range of criminal conduct committed while in office, causing concern among some that it sets a precedent that presidents are above the law.

While no president has ever been indicted, there have been close encounters. President Ulysses S. Grant was reportedly brought into custody for speeding, and President Richard Nixon's likely indictment led to his pardon by President Gerald Ford.

The arguments against indicting a sitting president focus on the potential impact on their ability to govern and the separation of powers. Some interpret the Constitution to require the Senate to remove the president from office before being subject to courts. However, others argue that the lack of presidential immunities was intentional to ensure the president remains a citizen subject to the law.

Prosecution of a sitting president

The prosecution of a sitting president is a complex and controversial issue that has been the subject of much debate and discussion among legal scholars and policymakers. While there is no explicit provision in the Constitution that grants immunity to a sitting president from criminal prosecution, there are several arguments and interpretations of the Constitution that have been put forward to support the idea that a sitting president cannot be prosecuted.

One of the primary arguments against the prosecution of a sitting president is based on the interpretation of the Impeachment Judgment Clause. The Office of Legal Counsel (OLC) in the Department of Justice (DOJ) has consistently held that the impeachment provisions in the Constitution signal that a sitting president cannot be prosecuted while in office. They argue that the only means to legally incapacitate a sitting president are impeachment, which removes the president from office, or the 25th Amendment, which sidelines an incapacitated president. The OLC's position is based on the belief that allowing a criminal indictment, prosecution, and punishment of a sitting president would effectively incapacitate them and prevent them from performing their constitutionally assigned functions as the head of the executive branch.

Another argument against prosecuting a sitting president is the potential impact on the functioning of the government. The OLC has argued that prosecuting a sitting president would "hamstring the operation of the whole governmental apparatus in both foreign and domestic affairs." This suggests that the criminal proceedings against a sitting president could have far-reaching consequences and potentially destabilize the nation.

It is important to note that while the OLC and DOJ have consistently held that a sitting president cannot be prosecuted, this is not a universally accepted interpretation. Some legal scholars and practitioners have argued that the lack of explicit presidential immunities in the Constitution was intentional to ensure that the president remains a citizen who cannot ignore the law. Additionally, the Supreme Court has never explicitly ruled that a president is immune from criminal prosecution.

In practice, there have been several instances where sitting presidents have faced criminal investigations, but none have resulted in prosecution while in office. For example, Presidents Richard Nixon, Bill Clinton, and Donald Trump were all investigated while in office, but none were indicted or prosecuted during their tenure.

Impeachment and removal from office

The United States Constitution provides that the House of Representatives "shall have the sole Power of Impeachment" (Article I, section 2) and "the Senate shall have the sole Power to try all Impeachments" (Article I, section 3). The president, vice president, and all civil officers of the United States are subject to impeachment.

Impeachment is the process of bringing charges against a government official for wrongdoing. A trial may be held, and the official may be removed from office. The Constitution gives Congress the power to impeach federal officials. An official can be impeached for treason, bribery, and "other high crimes and misdemeanors." The definition of "high crimes and misdemeanors" is not specified in the Constitution and has long been the subject of debate.

The House of Representatives brings articles (charges) of impeachment against an official. If the House adopts the articles by a simple majority vote, the official has been impeached. The Senate holds an impeachment trial. In the case of a president, the U.S. Supreme Court chief justice presides. If found guilty, the official is removed from office and may be barred from holding elected office again. If they are not found guilty, they may continue to serve in office.

Since 1789, about half of Senate impeachment trials have resulted in conviction and removal from office. The House has initiated impeachment proceedings more than 60 times, but there have only been 21 impeachments, including three presidents. Of those who were impeached, only eight officials were found guilty by the Senate and removed from office. All eight were federal judges. Presidents Johnson, Clinton, and Trump remained in office following acquittals by the Senate on all charges.

It is important to note that impeachment and removal from office are separate from civil or criminal proceedings against a president. While a president may be impeached and removed from office, they cannot be arrested or indicted while in office, according to the Department of Justice's Office of Legal Counsel (OLC). This is based on the argument that prosecuting a sitting president would unconstitutionally prevent them from performing their duties as the head of the executive branch.

Civil and criminal immunity

The question of whether a sitting president can be arrested under state law has been a subject of debate and interpretation of the US Constitution. While there is no explicit mention of presidential immunity in the Constitution, various arguments and interpretations have been put forward regarding civil and criminal immunity.

One argument against indicting a sitting president is based on the text and balance of powers in the Constitution. The Constitution states that the Senate can remove a president from office and prevent their re-election. However, it also states that a president who has been convicted "shall be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law." This has been interpreted to mean that the Senate must remove the president from office before they can be subject to courts. Additionally, allowing a sitting president to be imprisoned would be similar to impeachment, as they would be unable to perform their duties, potentially leading to an unconstitutional usurpation of power by the judiciary.

Another argument against indictment is based on the idea of presidential immunity. In 1973, during the Watergate scandal, the Department of Justice's Office of Legal Counsel (OLC) issued a memorandum concluding that it is unconstitutional to prosecute a sitting president. The OLC argued that the president is the symbolic head of the nation, and criminal proceedings against them would hamper the functioning of the government. The OLC's position is that only impeachment or the 25th Amendment can legally incapacitate the president. The OLC further distinguished between civil and criminal presidential immunity in a 2000 memorandum, reiterating that prosecuting a sitting president would adversely affect their ability to govern. These memoranda are not legally binding but are followed within the Department of Justice.

The Supreme Court has also weighed in on the issue of presidential immunity. In Nixon v. Fitzgerald (1982), the Court ruled that the president has absolute immunity from civil damages actions for conduct within the "outer perimeter" of their duties. However, in Clinton v. Jones (1997), the Court decided against temporary immunity for sitting presidents from suits arising from pre-presidency conduct. In 2024, the Supreme Court ruled in Trump v. United States that presidents have absolute immunity from criminal prosecution for official acts within their "exclusive sphere of constitutional authority." For unofficial acts, there is no immunity, and the president can be subject to criminal liability.

While no president has ever been indicted, there have been close encounters. President Ulysses S. Grant was reportedly brought into custody for speeding, resulting in a fine. President Richard Nixon faced potential indictment but was pardoned by his successor, Gerald Ford. President Bill Clinton escaped indictment through negotiations with special counsel over false testimony in the Monica Lewinsky scandal.

Historical cases of presidential arrest

While the U.S. Constitution does not explicitly address presidential immunity, it is generally understood that the President of the United States enjoys immunity from criminal prosecution due to their unique duties and position. This immunity is considered a vital safeguard, as it prevents the president from being bogged down by numerous lawsuits and allows them to govern effectively.

Despite this immunity, there have been historical cases where U.S. presidents have faced legal trouble, ranging from minor infractions to more serious allegations. One notable example is the case of President Ulysses S. Grant, who was arrested in 1872 for speeding in a horse-drawn carriage in Washington, D.C. Grant, who was a passenger in the carriage, was reportedly a fan of fast-paced rides and had been stopped for speeding multiple times before his arrest.

Another instance involves former President Donald Trump, who was indicted by a Manhattan grand jury on charges related to hush-money payments made to a porn star, Stormy Daniels. Trump's case is considered one of the biggest political scandals in American history, even if the charges are related to bookkeeping fraud. Trump has also faced other legal troubles, including allegations of conspiring to overturn the 2020 election results, resulting in his conviction on all 34 counts of first-degree felonies.

President Nixon also faced legal scrutiny in the Watergate scandal, which led to his resignation. While Nixon was not indicted, he was named as an "unindicted co-conspirator." Secretary of the Interior Albert Fall, who served under President Warren G. Harding, was convicted of bribery in 1929 for accepting Liberty Bonds in exchange for allowing private companies to lease oil reserves in Wyoming. This scandal tainted Harding's administration as corrupt, and the stress is believed to have contributed to his fatal heart attack in 1923.

Frequently asked questions