Overview
Indictments of a sitting or former president remain an uncertain area of Constitutional law. The Constitution does not directly address indictments for either, and the Supreme Court has never had an opportunity to rule directly on the issue. Overall, most legal experts support the possibility of indicting a former president at least for certain crimes, but there is less consensus on the indictment of a sitting president.
Background
A president or former president has never been charged with a crime before, which means that no court has been given the opportunity to rule on the topic. However, there have been a couple of close encounters. President Ulysses S. Grant is the only president ever brought into custody, but his arrest was over a speeding charge which resulted in release and a fine. President Richard Nixon’s likely indictment led his successor President Gerald Ford to pardon him. President Bill Clinton escaped indictment after negotiation with special counsel over false testimony given in the Monica Lewinsky scandal. However, no President has ever received an indictment. The closest the Supreme Court has come to addressing the issue was, in requiring President Nixon abide by a subpoena, stating that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances” (See United States v. Nixon, 418 U.S. 683, 706 (1974). However, circumstances have rarely given rise to the opportunity for elaboration.
Indictment of a Former President
The Constitution gives no immunities to former government officials after office, and most of the arguments for giving immunities to presidents or any official no longer exist once they leave office. The fact that the Constitution allows courts to try a president after being removed from office by the Senate brings many to assume courts must be able to do so at least for actions by a former president after office. Many have supported the indictment of a former president, including both the Department of Justice and President Ford–at least implicitly–when he pardoned former-President Nixon.
Most arguments against indicting a former president revolve around whether former presidents can be indicted for conduct that occurred while in office, and if so, what conduct. It is widely understood that presidents must receive some protection given the unique nature of the office regarding suits related to official conduct, and many argue that the lines between official and unofficial conduct can be blurry. In order to protect presidents for official conduct, only actions by a president clearly in a personal capacity should be indictable after leaving office, if at all. Many holding this position find that the role of punishing presidents for official acts remains with the Senate.
Indictment of a Sitting President
Arguments Against Indictment
The Department of Justice (DOJ) has a continuing policy since the 1970s that sitting presidents cannot be indicted as it would unconstitutionally prevent them from performing their duties as the head of the executive branch (see this Attorney General Memo). Essentially, if a president became indicted, this position holds that the entire Executive would be compromised from fulfilling its obligations given the unique powers of the president. This privilege does not extend to any other person, including the vice president. This line of reasoning has been supported by Supreme Court Justice Joseph Story in a treatise and strongly argued for by Justice Samuel Alito in a dissent in Trump v. Vance, 140 S. Ct. 2412. Further, the executive branch has complete prosecutorial discretion, which in theory gives the president authority over whether to indict themselves.
Other arguments against indictment focus on the text and other balances of power found in the Constitution. First, the Constitution states that, while the Senate can only remove a president from office and prevent their further election, presidents “convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” (See Const. Art. I, Sec. 3). Thus, some interpret this clause to require the Senate to remove the president from office before being subject to courts. Second, many argue that allowing a sitting president to be imprisoned would essentially be an impeachment as the president could not perform their duties in jail, and thus, the judiciary could unconstitutionally usurp the power of Congress. Another related argument is that members of Congress naturally have immunities given their embodiment of one branch of government, and thus, the Constitution limits the immunities of members of Congress in Const. Art. I Sec. 6 instead of granting them. Because no such limitations are given for the president, the president has full immunity as head of the executive from indictment and prosecution unless impeached.
Arguments in Favor of Indictment
Many arguments for allowing indictment of a sitting president focus on the lack of such provisions in the Constitution or its founding. James Madison argued that presidential immunities should be considered during the Philadelphia Convention when discussing protection of the Congressional immunities, but given that the matter never received a debate, many argue that it was clear no support existed for broad presidential immunities. Further, individuals on both sides of the partisan divide then saw the lack of presidential immunities as embodying a key part of American Constitutionalism: the head of government is not above the law, unlike their monarch counterparts in Europe. Thus, the argument goes that the lack of presidential immunities was an intentional action on the part of the Constitutional Convention to ensure the president remains a citizen that cannot ignore the law. Further, in interpreting Article I, Sec. 3, many argue this clause means that impeachment remains separate from prosecution, and therefore, the president can be indicted and punished regardless of whether impeachment has occurred.
The second main group of arguments in favor of indictment involve the moral hazards arising from giving a president such broad immunities. First, a president could, in theory, arrest enough Senators and executive officers to prevent an impeachment or an Amendment XXV process, leading to an uncheckable president, which some argue can not be squared with the separation of powers. Second, if a president can do as they please until being removed from office, the president could continue committing horrible crimes until impeachment, particularly if presidents can pardon themselves. Another argument is that indictment must be allowed for a sitting president, otherwise the statutes of limitations could run before the president leaves office for many crimes. Also, to hold otherwise, would mean before the enactment of term limits in the 22nd Amendment, presidents could avoid crimes indefinitely if they never left office and Congress could not gather enough support to impeach.
Additional Resources:
For more detailed analysis of the indictment of presidents, see this detailed Texas Law Review Article for historical and legal analysis, this DOJ Memo on the Policy Against Indicting a Sitting President, this Justia article on Indicting the President, and this NYU Just Security Article on the Nixon v. Fitzgerald Opinion Supporting the Indictment of a President.
[Last updated in March of 2023 by the Wex Definitions Team]