Presidential immunity in the United States

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It is legally untested to what extent presidents of the United States enjoy presidential immunity from arrest or prosecution while in office.[a] The Constitution does not explicitly grant the president any immunity; however, courts have given the president a degree of civil immunity, and some scholars and officials have suggested a comparable immunity from criminal prosecution. No court has ever ruled on the matter, nor does there exist any scholarly consensus.

Scholarly views

The Constitution of the United States grants legislative immunity to members of Congress through the Speech or Debate Clause, but has no explicit comparable grant for the president.[1]

Laurence Tribe has argued in The Boston Globe and Lawfare that it is constitutional to prosecute a sitting president, citing a hypothetical example of a president who blatantly murders someone.[2] Philip Bobbitt in Lawfare respectfully disagreed with Tribe, in particular his logic that any president indicted after an impeachment will be pardoned by his successor (as with Gerald Ford and Richard Nixon).[3] Walter Dellinger argues that a sitting president cannot be put on trial but can still be indicted.[4]

Saikrishna Bangalore Prakash compares the OLC's reasoning to that of an "unabashed monarchist".[5] He observes a number of problems with presidential immunity from prosecution, including the question of whether the statute of limitations should be tolled while the president is in office. The 1973 OLC memo says that it should not be but suggests that Congress could extend the statute of limitatons specifically for presidents.[6] Akhil Reed Amar and Brian C. Kalt see tolling as a potential solution to the problem.[7] Kim Wehle has criticized the OLC memos at length in The Atlantic and Stanford Law Review, highlighting that they have no force of law and could be overturned by the attorney general at any time.[8] Wehle goes as far as to say that, if necessary, federal courts should extend then-Judge Brett Kavanaugh's logic in In re Aiken County and issue writs of mandamus forcing the Department of Justice to apply laws equally to the president.[9]

History and legal precedent

Three presidents (Richard Nixon, Bill Clinton, and Donald Trump) have been criminally investigated while in office, but none have been prosecuted.[b]

OLC memoranda

In 1973, amid the Watergate scandal, the Department of Justice's Office of Legal Counsel (OLC) issued a memorandum concluding that it is unconstitutional to prosecute a sitting president.[11] Its arguments include that the president "is the symbolic head of the Nation. To wound him by a criminal proceeding is to hamstring the operation of the whole governmental apparatus in both foreign and domestic affairs."[5] After the United States Supreme Court's 1997 decision in Clinton v. Jones, ordering Bill Clinton to sit for a deposition, the OLC issued a second memorandum, distinguishing civil and criminal presidential immunity and determining that it was still improper to prosecute a president due to the adverse affect it might have on his ability to govern.[12]

Neither memo has force of law, but are binding within the Department of Justice. Because they were not promulgated with room for public comment, they do not qualify as administrative law either; rather, they are an internal prosecutorial policy.[13] The memoranda are not taken to bar investigating the president or even announcing a determination that the president has broken the law, as Nixon, Clinton, and Donald Trump have all been subject to criminal investigations while in office.[14]

The Mueller report determined that Robert Mueller, as special counsel, was bound by the 1973 and 2000 OLC memos. Mueller determined that he could investigate Trump, but concluded that, since he could not indict him and thereby give him the chance to defend himself, it would not be fair to label Trump's actions criminal.[15][b] The Muller investigation did not result in any legal action against Donald Trump.

Vice presidents

Two vice presidents have been indicted: Aaron Burr in New York and New Jersey for killing Alexander Hamilton in a duel; and Spiro Agnew, who pleaded no contest to several offenses at the moment of his resignation. However, the same arguments have not been made for vice presidential immunity as for presidential.[16]

Ulysses S. Grant

In a 2012 interview[17] the chief of the Washington Metropolitan Police stated that Ulysses S. Grant, while President of the United States in 1872, was "taken into custody" after "racing his buggy on M street", and during and after the presidency of Donald Trump numerous sources retold the story, identifying it as one told by a retired Washington police officer beginning in 1908.[18][19][20][21][22][23]

Notes

  1. ^ The arrest or prosecution of a president is distinct from impeachment or removal from office, which are a purely political rather than criminal matter.
  2. ^ a b Donald Trump was indicted and arrested in 2023, two years after he left office, on charges arising from activity before he gained office.[10]

References

  1. ^ Akhil Amar & Neal Katyal, Executive Privileges and Immunities: The Nixon and Clinton Cases, 108 Harv. Law Rev. 701, 702 (January 1, 1995, {{{year}}}).
  2. ^ Laurence Tribe, Constitution rules out immunity for sitting presidents, The Boston Globe (December 12, 2018). Laurence Tribe, Yes, the Constitution Allows Indictment of the President, Lawfare (December 20, 2018).
  3. ^ Philip Bobbitt, Can the President Be Indicted? A Response to Laurence Tribe., Lawfare (December 17, 2018).
  4. ^ Walter Dellinger, Yes, You Can Indict the President, N.Y. Times (March 26, 2018).
  5. ^ a b Prakash, supra, at § I(C).
  6. ^ Prakash, supra, at § I.
  7. ^ Akhil Amar & Brian Kalt, The Presidential Privilege Against Prosecution, 2 Nexus 11, 16 (January 1, 1997, {{{year}}}).
  8. ^ "Law and", supra, at 6.
  9. ^ "Law and", supra, at 53, 58.
  10. ^ Aliza Chasan, Trump has been charged, but Ulysses S. Grant was the first president to be arrested, CBS News (April 4, 2023).
  11. ^ Kimberly L. Wehle, "Law and" the OLC's Article II Immunity Memos, 32 Stan. L. & Pol'y Rev. 1, 4–5 (February, 2021). [Hereinafter "Law and".] Prakash, supra, at Introduction. Michael Macagnone, This obscure 1973 memo kept Mueller from considering a Trump indictment, Roll Call (May 29, 2019).
  12. ^ Macagnone, supra. Kimberly Wehle, The Two Memos With Enormous Constitutional Consequences, The Atlantic (April 19, 2021; archived copy).
  13. ^ "Law and", supra, at 6–8.
  14. ^ Prakash, supra, at § II(B)(2)(a).
  15. ^ Mahita Gajanan, Despite Evidence, Robert Mueller Would Not Say Whether Trump Obstructed Justice. Here's Why, Time (April 18, 2019).
  16. ^ Cite error: The named reference prakash-d was invoked but never defined (see the help page).
  17. ^ "D.C. police once arrested a U.S. president for speeding". WTOP News. October 6, 2012. Archived from the original on March 30, 2023. Retrieved March 31, 2023.,
  18. ^ Rashbaum, William K.; Christobek, Kate (April 4, 2023). "The only other arrest of a U.S. president involved a speeding horse". The New York Times. Archived from the original on April 11, 2023. Retrieved April 11, 2023.
  19. ^ Rosenwald, Michael S. (December 16, 2018). "The police officer who arrested a president". The Washington Post. Archived from the original on March 30, 2023. Retrieved March 31, 2023.
  20. ^ Chasan, Aliza (April 4, 2023). "Trump has been charged, but Ulysses S. Grant was the first president to be arrested". CBS News. Archived from the original on April 5, 2023. Retrieved April 4, 2023.
  21. ^ "D.C. police once arrested a U.S. president for speeding". WTOP News. October 6, 2012. Archived from the original on March 30, 2023. Retrieved March 31, 2023.
  22. ^ Solly, Meilan (March 31, 2023). "When President Ulysses S. Grant Was Arrested for Speeding in a Horse-Drawn Carriage". Smithsonian. Archived from the original on April 11, 2023. Retrieved April 11, 2023.
  23. ^ Simon, Scott (December 22, 2018). "That Time A President Got In Trouble With The Police". Weekend Edition. NPR. Archived from the original on April 4, 2023. Retrieved April 4, 2023.
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