The Prospect of a President Incarcerated
NEXUS, Vol. 2, pp. 86-97, Spring 1997
12 Pages Posted: 30 Aug 2009
Date Written: April 16, 2009
This article addresses the thorny question of whether a President can be criminally prosecuted while in office or whether prosecution must await his or her departure. The piece appeared as part of a symposium of articles that focused on that issue. The authors of the other articles were Akhil Reed Amar, Brian C. Kalt, Erwin Chemerinsky, Terry Eastland, Jay S. Bybee and Eric Freedman. The conclusions of the various authors made clear that scholars are divided over whether Section 3 of Article I implies that impeachment must precede any criminal prosecution and over whether the articulation of presidential power in Article II, Section 1, combined with the doctrine of separation of powers, implies a presidential immunity from prosecution. In this article, I argue that the Constitution is not appropriately read to provide a sitting President with any temporary immunity from criminal prosecution. However, I also argue that policy arguments favor such an immunity as a matter of federal common law in the absence of Congressional action on the problem. I also argue that this common law immunity should apply to the Vice President, but not to the President’s spouse, and should extend to civil as well as criminal cases. My conclusion that the judiciary could ground immunity on its power to articulate federal common law implies as well that Congress could dominate the field in the first instance or in response to a judicial ruling.
Keywords: presidential immunity, impeachment, unitary executive, pardon power
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