Can A Sitting President Face Legal Prosecution?

The question of whether a sitting president can be prosecuted has been a topic of debate in the United States for decades. While some argue that the president has absolute immunity from criminal prosecution for any core executive acts, others contend that immunity only extends to civil damages actions within the outer perimeter of their duties. The Supreme Court has granted former President Trump immunity for a wide range of criminal conduct committed while in office, setting a precedent for future presidents. However, this decision has been criticized by the ACLU and some legal scholars as granting a blank check to break the law. The Department of Justice's Office of Legal Counsel (OLC) has stated that a sitting president cannot be prosecuted, but this is not a legal rule and only represents the official policy of the Justice Department. The OLC's reasoning has been criticized as monarchist and inconsistent with the Constitution's treatment of other officials. The ability to prosecute a sitting president remains a contentious issue with implications for the balance of power between the executive and judicial branches.

Immunity from prosecution

The U.S. Constitution explains that a president can be impeached and removed from office for "high crimes and misdemeanors" by Congress. However, the Constitution does not explicitly state whether a sitting president can face criminal prosecution in court, and the Supreme Court has not directly addressed the question.

The Supreme Court has never ruled that a sitting president is immune from criminal liability. However, the Office of Legal Counsel (OLC) has stated that the president cannot be prosecuted or indicted, a stance that has been reiterated multiple times since the 1970s. This remains the official Justice Department policy, and no U.S. attorney will indict or prosecute a sitting president. The OLC's claim is based on the belief that the Constitution would not allow a local or federal prosecutor to incapacitate the chief executive.

The Department of Justice (DOJ) has concluded that, based on the Constitution's structure and Supreme Court precedent, it should not indict a sitting president. Instead, the House of Representatives should impeach, and the Senate should convict, before the DOJ begins criminal prosecution. This interpretation is supported by Alexander Hamilton in The Federalist Nos. 65 and 69.

In United States v. Nixon (1974), the Supreme Court held that President Nixon was required to produce evidence for use in a federal criminal case. Nixon had argued that he was immune to judicial process due to the independence of the Executive Branch, but the Supreme Court disagreed, stating that there was no absolute presidential privilege of immunity from judicial process under all circumstances.

In Clinton v. Jones (1997), the Court held that President Clinton was not protected from a sexual harassment lawsuit based on conduct before he was president. The Court rejected the argument that criminal subpoenas would impair the Executive's ability to perform its functions.

In Nixon v. Fitzgerald, the Court ruled that the President is immune in actions for civil damages for acts within the outer perimeter of his official duties.

Impeachment

The U.S. Constitution provides that the House of Representatives has the "sole Power of Impeachment" and that the Senate has the "sole Power to try all Impeachments". The Constitution gives Congress the power to impeach federal officials and remove them from office 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 debated.

Once the articles of impeachment are approved by the House, they are sent to the Senate, which sits as a High Court of Impeachment. The Senate considers evidence, hears witnesses, and votes to acquit or convict the impeached official. A committee of representatives, called "managers", act as prosecutors before the Senate. The Senate requires a two-thirds vote to convict, and the penalty for an impeached official upon conviction is removal from office. In some cases, the Senate has also disqualified officials from holding public office in the future. There is no appeal.

Since 1789, about half of Senate impeachment trials have resulted in conviction and removal from office. Former President Richard Nixon resigned after Congress started the impeachment process against him in 1974. Judicial impeachments are rare; just over a dozen federal judges have been impeached in U.S. history.

Statute of limitations

The statute of limitations restricts the time within which a prosecution may be brought. Many federal crimes have a five-year statute of limitations, meaning prosecutors have five years from the date the conduct at issue occurred to bring an indictment.

This statute of limitations could work to the advantage of a president who commits a crime while in office, as it may prevent them from being charged if they are re-elected. For example, if President Trump were re-elected in 2020 and served a full two four-year terms, he would be immune from prosecution for any crimes committed during his first term by January 2025.

Some lawyers argue that, as a matter of fairness, the normal rules on the timeliness of charges should not apply to the president. However, the U.S. Constitution and Supreme Court have not directly addressed whether a sitting president can face criminal prosecution. The Supreme Court has affirmed the legality of burdensome legal processes against a sitting president, and that a sitting president could be sued for tortious acts performed in a personal capacity before assuming office.

The Department of Justice has a decades-old policy that a sitting president cannot be indicted, and because they control all federal prosecutors, no federal prosecutor can prosecute a sitting president. However, Congress has introduced the Protecting Our Democracy Act, a bill designed to prevent presidential abuses of power and limit the reach of the pardon power. The bill could be amended to clarify that it is not unconstitutional to indict a sitting president and that the Department of Justice may seek criminal indictments of executive branch officials, including the president and vice president.

Criminal prosecution

The criminal prosecution of a sitting president is a highly contested issue in the United States. While the U.S. Constitution outlines a process for removing a president from office for "high crimes and misdemeanors" through impeachment by Congress, it does not explicitly address whether a sitting president can face criminal prosecution in court. This ambiguity has led to differing interpretations and has been a subject of debate among legal scholars and experts.

Some argue that prosecuting a sitting president would "unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions." This view holds that the president, as the head of the nation, should be immune from criminal prosecution to avoid hampering the functioning of the government in both foreign and domestic affairs. The Department of Justice (DOJ) and its Office of Legal Counsel (OLC) have long held this position, issuing memoranda in 1973 and 2000 stating that it is unconstitutional to prosecute a sitting president. These memoranda, while not carrying the force of law, are binding within the DOJ.

However, others disagree with this interpretation, arguing that the absence of a provision shielding the president from prosecution in the Constitution suggests that an indictment would be permissible. They contend that granting immunity to the president violates the fundamental principle that no one is above the law. Additionally, legal scholars have pointed out that the Supreme Court has never explicitly ruled that a sitting president is immune from criminal liability. While the Court has granted absolute immunity to presidents for civil damages related to official duties in Nixon v. Fitzgerald (1982), it ruled against temporary immunity for sitting presidents from suits arising from pre-presidency conduct in Clinton v. Jones (1997).

The issue of criminal prosecution has come to the forefront during the presidencies of Bill Clinton, Donald Trump, and investigations into Russia's role in the 2016 U.S. election. Special counsels and independent counsels have investigated these matters, but no sitting president has been indicted or prosecuted. The question of whether a sitting president can face criminal charges remains unresolved, with legal experts and scholars continuing to debate the interpretation of the Constitution and the role of the judiciary in holding the president accountable.

In conclusion, the criminal prosecution of a sitting president is a complex and contentious issue in the United States. While there are strong arguments on both sides, the ultimate decision rests with the interpretation of the Constitution and the precedent set by the Supreme Court. The lack of a clear ruling by the Court on this matter leaves room for ongoing debate and differing opinions among legal scholars and experts.

Civil immunity

The civil immunity of a sitting US president has been a topic of debate for decades. While the US Constitution does not explicitly grant civil immunity to the president, the Office of Legal Counsel (OLC) issued a memorandum in 1973 amidst the Watergate scandal concluding that it is unconstitutional to prosecute a sitting president. The OLC's argument was that the president is the "symbolic head of the nation" and that criminal proceedings would "hamstring the operation of the whole governmental apparatus in both foreign and domestic affairs".

The Supreme Court has never ruled that a sitting president is immune from criminal liability. However, in Nixon v. Fitzgerald (1982), the Court held that the president has absolute immunity from civil damages actions regarding conduct within the "outer perimeter" of their official duties. This means that the president cannot be sued for civil damages arising from their official acts, but they can be sued for actions taken before taking office or unofficial conduct while in office. For example, in Clinton v. Jones (1997), the Supreme Court ruled against temporary immunity for sitting presidents from suits arising from pre-presidency conduct. President Bill Clinton was sued for sexual harassment by Paula Jones, a former Arkansas state employee, for conduct that took place before he was president.

The Department of Justice (DOJ) has concluded that, based on the Constitution's structure and Supreme Court precedent, it should not indict a sitting president. This policy was most recently affirmed in a pair of memoranda issued by the OLC in 1973 and 2000, distinguishing civil and criminal presidential immunity. The DOJ's position is that criminal charges against a sitting president would undermine the capacity of the executive branch to perform its functions.

Some legal scholars disagree with the OLC's interpretation of presidential immunity. They argue that the nation's founders could have included a provision in the Constitution shielding the president from prosecution but did not, suggesting that an indictment would be permissible. These scholars believe that immunity for the president violates the principle that nobody is above the law.

Frequently asked questions