Executive Power

Vox Symposium on Whether a Sitting President Can be Indicted and Prosecuted for a Crime

The symposium includes contributions by 16 legal commentators, including VC bloggers Keith Whittington and myself.

|

President Donald Trump. Ron Sachs (CNP/MEGA /Newscom)

Vox has posted a symposium on the question of whether a sitting president can be indicted and prosecuted for a federal crime. It includes contributions by a wide range of legal scholars and commentators, including Volokh Conspiracy bloggers Keith Whittington, and myself. Here's an excerpt from my piece:

There's a longstanding disagreement over the issue of whether a sitting president can be indicted and prosecuted for possible crimes. In my view, the answer is yes. Nothing in the Constitution grants the president immunity from prosecution of the sort that exists in some European constitutions.

The idea that a sitting president is immune from criminal prosecution is also at odds with the Supreme Court's 1997 ruling in Clinton v. Jones, which holds that the president is subject to civil lawsuits (thereby allowing Paula Jones to proceed with her sexual harassment case against then-President Bill Clinton). A civil case can be just as disruptive as a criminal one….

Prosecution of sitting presidents does create the risk that a president will be tied up by a case involving some minor violation of the law. The founders did not envision today's extraordinarily expansive federal criminal law, under which a majority of adult Americans have probably committed a federal crime at some time in their lives.

Short of cutting back on the scope of federal law (a highly desirable measure for other reasons), the remedy for this would be for Congress to pass a law limiting prosecution of sitting presidents to very serious offenses…

While it would be a mistake to tie up presidents with prosecutions for minor offenses, it would also be an error to give sitting presidents immunity from prosecution for even the most serious crimes. A criminal president can do grave damage, and deferring prosecution until he leaves office — potentially many years later — may not be a sufficient deterrent.