Presidential Misconduct: Breaking Federal Law

In the United States, the question of whether a president can be held accountable for breaking the law has been a topic of debate and legal scrutiny. While the Supreme Court has granted sitting presidents immunity from prosecution for official acts, this does not extend to unofficial acts. The distinction between official and unofficial acts is crucial, as it determines the scope of presidential immunity.

The Constitution does not explicitly grant civil or criminal immunity to the president, but courts have historically recognised absolute immunity for acts within the course of presidential duties. This immunity, however, is not without limits, and several legal experts and scholars have argued that a sitting president can be investigated and prosecuted for criminal acts, particularly those that fall outside their official responsibilities.

The issue of presidential immunity gained prominence during the Trump administration, with legal challenges arising from various actions taken by President Trump, including the attempted dismantling of independent agencies, granting private individuals access to sensitive government information, and offering federal employee buyouts. These actions have sparked debates about the limits of presidential power and the potential violation of federal laws and constitutional principles.

While the Supreme Court's decision in Trump v. United States set a precedent for presidential immunity, it is important to note that this immunity is not absolute and does not condone lawbreaking by the president. The courts, Congress, and public opinion all play a role in holding the president accountable and ensuring that the rule of law is upheld.

Immunity from prosecution for criminal acts committed while in office

The concept of presidential immunity in the United States is a highly debated topic, with no explicit mention of it in the Constitution or any federal statute. However, the Supreme Court's decision in Trump v. United States in 2024 set a precedent by granting sitting presidents immunity from prosecution for official acts within their "exclusive sphere of constitutional authority". This decision has sparked concerns about presidential accountability and the potential for abuse of power.

The Supreme Court's ruling in Trump v. United States provides sitting presidents with absolute immunity from criminal prosecution for official acts within their "exclusive sphere of constitutional authority". This means that a sitting president cannot be prosecuted for criminal acts committed while in office if they fall within the scope of their constitutional powers. The court also granted presumptive immunity for official acts within the "outer perimeter" of a president's official responsibility, making it extremely difficult to hold a president criminally accountable.

This decision has been criticised for setting a dangerous precedent, suggesting that presidents are above the law. While the court did specify that a president can be prosecuted for unofficial or private acts, the definition of "official acts" is broad and makes it challenging to indict a president. The ruling also prevents official acts from being used as evidence to support a crime committed in the president's personal capacity, further shielding them from prosecution.

The implications of this ruling are significant, as it provides a level of protection for presidents who engage in corrupt or illegal activities while in office. It is essential to note that this immunity does not extend to acts committed before or after their presidency, and former presidents can still be held accountable for their actions. However, the process of investigating and prosecuting a sitting president is complex and often requires the involvement of Congress and special counsel.

While the Supreme Court's decision on presidential immunity is a recent development, the concept of immunity for sitting presidents has been debated for decades. The Department of Justice's Office of Legal Counsel (OLC) issued memoranda in 1973 and 2000, concluding that prosecuting a sitting president is unconstitutional. These memoranda are not legally binding but represent the internal policy of the Department of Justice. The OLC's position is based on the argument that criminal proceedings against a sitting president would "hamstring the operation of the whole governmental apparatus".

Violation of the Privacy Act of 1974

The Privacy Act of 1974 establishes a code of fair information practices that govern the collection, maintenance, use, and dissemination of personally identifiable information about individuals that is maintained in systems of records by federal agencies. A system of records is a group of records under the control of an agency from which information is retrieved by the name of the individual or by some identifier assigned to the individual.

The Privacy Act requires that agencies give the public notice of their systems of records by publication in the Federal Register. The Act prohibits the disclosure of information from a system of records without the written consent of the subject individual, unless the disclosure falls under one of twelve statutory exceptions. These exceptions include:

• For statistical purposes by the Census Bureau and the Bureau of Labor Statistics
• For routine uses within a U.S. government agency
• For archival purposes "as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government"
• For law enforcement purposes
• For congressional investigations
• Other administrative purposes

The Privacy Act also provides individuals with a means to seek access to and amendment of their records, and sets forth various agency record-keeping requirements. Individuals are granted the right to review what was documented in their name, find out if their records have been disclosed, and request corrections or amendments.

In 2017, President Trump signed an executive order that eliminated Privacy Act protections for foreigners. This executive order directed federal agencies to "ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information." This action by President Trump may have violated the Privacy Act of 1974 by denying the rights and protections afforded to individuals under the Act.

Violation of the Impoundment Control Act of 1974

The Congressional Budget and Impoundment Control Act of 1974 (ICA) was passed to reassert Congress's power of the purse and prevent the President and other government officials from unilaterally substituting their funding decisions for those of Congress. The Act outlines a process the President must follow if they seek to reduce, delay, or cancel funding that has been provided by Congress.

An "impoundment" is defined as any action or inaction by a federal government officer or employee that prevents federal funds from being spent or obligated, either temporarily or permanently. The ICA divides impoundments into two categories: rescissions and deferrals.

If the President wants to spend less money than Congress provided for a particular purpose, they must first secure a law providing Congressional approval to rescind the funding in question. The ICA requires the President to send a special message to Congress identifying the amount of the proposed rescission, the reasons for it, and the budgetary, economic, and programmatic effects of the rescission. Upon transmitting this message, the President may withhold certain funding in the affected accounts for up to 45 legislative session days. If a law approving the rescission is not enacted within this time frame, any withheld funds must be made available for obligation.

A "deferral" is defined as withholding, delaying, or effectively precluding funding from being obligated or spent through other executive action or inaction. The ICA prescribes three narrow circumstances in which the President may propose to defer funding for a program: providing for contingencies, achieving budgetary savings through improved operational efficiency, or as specifically provided by law. The President must send a special message to Congress identifying the amount of the proposed deferral, the reasons for it, and the period of the proposed deferral. The deferral cannot extend beyond the end of the fiscal year in which the message is sent.

In 2025, President Trump's administration was accused of violating the Impoundment Control Act of 1974 by illegally impounding crucial security assistance funding for Ukraine to benefit his reelection campaign. This led to an investigation and the resignation of two budget office staffers over concerns about apparent improprieties. The Government Accountability Office (GAO) issued a decision finding that the Office of Management and Budget (OMB) had withheld funds for an unauthorized reason, in violation of the ICA.

Violation of the Anti-Deficiency Act

The Anti-Deficiency Act prohibits federal employees, including the president, from obligating funds unless the amount and purpose of such spending have been approved by Congress in the form of enacted law. A violation of the Anti-Deficiency Act occurs when this prohibition is violated and includes both administrative and criminal penalties.

An example of a violation of the Anti-Deficiency Act is when the federal government offers buyouts to federal employees, promising them payments eight months in the future. The legal question is whether such a sweeping federal buyout can be legally implemented, especially as the federal government's funding is set to run out in mid-March.

Legal experts argue that the Anti-Deficiency Act strictly limits the government's ability to promise expenditures that exceed what Congress has allocated. While the Trump Administration has insisted that the buyout offers will not result in any guaranteed payments beyond the current appropriations period, legal scholars point out that the program's structure could raise the risk of incurring obligations beyond the provisions in the federal budget, which would violate federal law.

They argue that the Anti-Deficiency Act prohibits agencies from entering into contracts to pay future obligations without the necessary appropriations to do so, and that the buyout program could be a clear violation of the Act.

Once it has been determined that there has been a violation of the Anti-Deficiency Act, the agency head must report all relevant facts and a statement of actions taken to the President and Congress and submit a copy of the report to the Comptroller General. Penalties for violations include administrative discipline, such as suspension from duty without pay or removal from office. Additionally, an officer or employee convicted of willfully and knowingly violating the law shall be fined not more than $5,000, imprisoned for not more than 2 years, or both.

Violation of the Administrative Leave Act

The Administrative Leave Act of 2016 created three new categories of statutorily authorised paid leave and set parameters for their use by federal agencies. The Office of Personnel Management (OPM) prescribes regulations to carry out the Act and guide agencies regarding these leave categories.

The Administrative Leave Act applies to employees covered by Title 5 of the US Code, but does not apply to intermittent employees who do not have an established regular tour of duty during the administrative workweek. The Act defines "administrative leave" as leave without loss of or reduction in pay, leave to which an employee is otherwise entitled under law, or credit for time or service, and "that is not authorised under any other provision of law".

The Act states that during any calendar year, an agency may place an employee on administrative leave for no more than 10 workdays in total. This limit does not apply to administrative leave for other purposes. The Act also states that administrative leave is not an entitlement, and agencies are not required to grant it.

The Act further states that each agency has the authority and discretion to excuse employees from duty without loss of pay or charge to leave in appropriate circumstances.

The Act outlines the following acceptable uses of administrative leave:

• The absence is directly related to the agency's mission.
• The absence is officially sponsored or sanctioned by the agency.
• The absence will clearly enhance the professional development or skills of the employee in their current position.
• The absence is as brief as possible under the circumstances and is determined to be in the interest of the agency.

The Act also outlines the following prohibited uses of administrative leave:

• To mark the memory of a deceased former federal official.
• As a reward to recognise the performance or contributions of an employee or group of employees.

The Act requires agencies to keep separate records on each type of leave provided under the Act: administrative leave, investigative leave, notice leave, and weather and safety leave.

The Act also requires agencies to revise and implement internal policies to meet the requirements of the Act within 270 calendar days after the date the OPM issues its regulations.

The OPM may issue government-wide policies or guidance regarding the specific use of administrative leave from time to time.

In January 2025, legal and government experts raised questions about the Trump administration's federal buyout program, stating that it may violate the Administrative Leave Act. The program offered millions of federal employees an unexpected offer to resign by February 6 in exchange for eight months of pay and benefits.

The OPM advises that the legal crux of the issue lies in the Anti-Deficiency Act, which strictly limits the government's ability to promise expenditures that exceed what Congress has allocated. The OPM also argues that the Trump administration's deferred resignation program, which effectively places employees on leave while continuing to pay them, could also run afoul of the Administrative Leave Act.

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