Criminal immunity
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Constitutional Provisions
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Article II, Section 4 provides for which crimes the President shall be removed from office by impeachment in the House and conviction in the Senate. Article I, Section 3, Clause 7 specifies that a President impeached by the House and convicted by the Senate is nevertheless “liable and subject to Indictment, Trial, Judgment and Punishment according to Law.”
Background
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A number of sources have repeated a claim that Ulysses S. Grant was arrested in office in 1872, and this has been cited in the context of presidential immunity.[18] While the Metropolitan Police Department of the District of Columbia has appeared to confirm this narrative,[19] there does not seem to be any contemporaneous documentation of it,[20] which has caused the Ulysses S. Grant National Historic Site to question its historicity.[21] A similar claim regarding Franklin Pierce has been dismissed as apocryphal by Pierce scholar Peter Wallner.[22]
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.[18
OLC memoranda
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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.[23] 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."[24] It says that the statute of limitations should not be tolled while the president is in office, but suggests that Congress could extend the statute of limitations specifically for presidents.[25] After the U.S. Supreme Court's decision in Clinton, the OLC issued a second memorandum in 2000, 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.[26]
Neither memorandum has force of law, but both 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.[27] 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.[28]
Special counsel determinations and further debate
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The staff of Leon Jaworski, the special counsel investigating Watergate, wrote an internal memorandum in 1974 concluding that Jaworski could indict Nixon, then the sitting president. Jaworski later argued the same in court, but ultimately deferred to Congress's impeachment powers. Nixon later resigned facing impeachment. In 1998, a consultant for Ken Starr, who as independent counsel was investigating Clinton, wrote a memorandum discussing the topic at greater length and reaching the same conclusion. Starr drafted an indictment of Clinton but never filed it, instead reporting to Congress, which impeached and later acquitted Clinton.[29]
The question of presidential criminal immunity re-emerged during the presidency of Donald Trump and Robert Mueller's special counsel investigation. The Mueller report determined that Mueller was bound by the 1973 and 2000 OLC memoranda. Mueller found 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.[30]
Amidst the investigation, Laurence Tribe 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.[31] 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).[32] Walter Dellinger argued that a sitting president cannot be put on trial but can still be indicted.[33]
Saikrishna Bangalore Prakash compares the OLC's reasoning to that of an "unabashed monarchist".[24] He observes a number of problems with presidential immunity from prosecution, including the question of tolling the statute of limitations.[25] Akhil Reed Amar and Brian C. Kalt see tolling as a potential solution to the problem.[34] Kim Wehle has criticized the OLC memoranda at length in The Atlantic and Stanford Law & Policy Review, highlighting that they have no force of law and could be overturned by the attorney general at any time.[35] Wehle goes as far as to say that, if necessary, federal courts should issue writs of mandamus forcing the Department of Justice to apply laws equally to the president, an extension of logic used by then-Judge Brett Kavanaugh in In re Aiken County (2011).[36]
Source
https://en.m.wikipedia.org/wiki/Presidential_...ted_States
