The Law as King and the King as Law: Is a President Immune from Criminal Prosecution Before Impeachment?

Abstract

This article argues that a sitting President is subject to criminal indictment.

Part I reviews what is known about the history of the issue at the time of the adoption of the Constitution. It brings to light the previously unremarked fact that there was explicit disagreement on this point.

Part II examines national historical practice since the ratification of the Constitution, and finds that all high federal officeholders-through and including the Vice President-have been uniformly considered subject to criminal prosecution while in office.

Part III examines the two-fold nature of the Impeachment Clause, separating issues of political suitability to hold office from those of criminal liability for wrongdoing, and then turns to the regime of civil but not criminal immunity that has been developed in the case of other officeholders. Amenability of the President to criminal prosecution while in office would be consistent with the letter and spirit of the immunity cases. More significantly, that result would be justified by both an understanding of "the rule of law," as a frame both for curbing the bad officeholder and for displaying the virtue of the good one.

Part IV considers and rejects, on factual and legal grounds, a series of practical objections: (A) the argument that indicting the President would effectively constitute a removal from office in derogation of the constitutional exclusivity of the impeachment remedy, (B) the threat that the President might be subject to frivolous prosecutions, and (C) the danger that fear of criminal liability might chill the President from the vigorous discharge of duty.

The conclusion is that criminal prosecution of a sitting President is constitutional, and might be a useful option under certain circumstances.

Keywords: Separation of Powers, Checks and Balances, Presidential Immunity

JEL Classification: K14, K41, K42