Presidential Accountability and the Rule of Law: Can the President Claim Immunity If He Shoots Someone on Fifth Avenue?

Abstract

Can a sitting President be indicted while in office? This critical constitutional question has never been directly answered by any court or legislative body. The prevailing wisdom, however, is that, though he may be investigated, a sitting President is immune from actual prosecution. The concept of presidential immunity, however, has hastened the erosion of checks and balances in the federal government and weakened our ability to rein in renegade Presidents. It has enabled sitting Presidents to impede the enforcement of subpoenas and other tools of investigation by prosecutors, both federal and state, as well as to claim imperviousness to civil process, extending even to third parties. In an important recent case, the Supreme Court rejected the idea of presidential immunity as a constitutional doctrine and reasserted that a sitting President is not above the law. In Trump v. Vance, the Court made clear that a President’s Article II powers do not shield him from criminal investigation. In this Article, we argue that the holding of Vance is reinforced by historical discussions from the early days of the Republic, by important Supreme Court precedent, and by a sound understanding of the requirements of democratic governance. As we argue, the Vance case suggests that a sitting President can be investigated and indicted while in office. We argue that immunity from criminal prosecution for a sitting President would undermine all other forms of accountability, such as impeachment and the ballot box, as Presidents will be able to commit crimes to avoid the impact of these two important guardrails of democracy with impunity. In keeping with our argument, we urge the Department of Justice to withdraw the two memos it has issued asserting that a sitting President cannot be indicted while in office and revise its advice to make clear that a sitting President who commits a crime should be investigated and potentially indicted. The Department should thus reiterate the basic principle the Founders embraced and that the Court upheld in Vance, namely that no person is above the law.

Keywords: presidential immunity; indictment; investigation; federalism; accountability; rule of law; Department of Justice