I’m having trouble finding an answer to this question. Assuming a US president hasn’t been impeached, can he/she be arrested and incarcerated and still remain in office, or does the fact that they are arrested or incarcerated require the vice president to take over the duties of the president until he/she is released?
I think the 25th Amendment applies:
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
So I think that this written declaration is what would need to happen.
That makes sense, but let’s say the VP and Cabinet don’t want to take away his/her power while he/she is in jail for some reason. Assuming they don’t initiate the 25th amendment then the president can remain in power while incarcerated and there is nothing anyone can do about it short of impeachment?
Then he would remain in power, nothing in the constitution would remove him from power if the remedies of impeachment or the 25th are not being executed.
The big caveat is a President still in office simply would never be incarcerated. But yes, in the fictitious scenario where he was, he would still have the full powers of the Presidency.
ETA: I can actually imagine at least a somewhat plausible scenario for this would relate to a situation like U.S. Grant’s famous incident where he was arrested for speeding around Washington in his horse-drawn carriage. He posted a $20 bond but never appeared in court on the charges. Imagine a President with a combination of Grant’s tendency to minor misbehaving, but Grant’s honesty in allowing himself to be arrested and paying a fine for his crime. Now we can imagine some weird crime that is big enough that it calls for say, 24 hours in jail, but not one that is likely to occasion enough political outrage for impeachment. This President, being a rascal but still respectful of the law, I could see conceding to being placed under home confinement in the White House residence or something for 24 hours, he’d do some fluff media over it, and maybe he also just refuses to sign the 25th Amendment. It would be akin to a working vacation, he wouldn’t be in his office but the White House residence would serve fine for him to execute his duties of office for 24 hours.
There’s a previous thread that goes into this. The relevant part starts at post 10.
Here is another thread from 2019 on the subject. Events since then have shown that removal by impeachment or going 25th Amendment are not guaranteed unless the political party with the votes has a spine.
Why is this so? If a sitting president ordered someone murdered, wouldn’t he be incarcerated?
Who would arrest him, and how?
The DC police when he leaves the White House? Is the president above the law while in office?
He most likely is, yes.
The DC Police wouldn’t be able to arrest him, he has armed guards at all times who are also Federal law enforcement officers, they would place anyone trying to accost his person into custody immediately.
This gets back to the whole Mueller/Barr fiasco. As I understood it, the current policy of the justice department is that while in office the president is immune from prosecution, and that the proper way to hold a president accountable is through Congress’ power to impeach. This of course presupposes that less than 1/3 of the senate is so corrupt as to ignore gross criminal misconduct by the president, an assumption which has proven to be false.
According to Article II of the US Constitution, the President must “take care that the laws be faithfully executed. This clause in the Constitution imposes a duty on the president to enforce the laws of the United States and is called the Take Care Clause, also known as the Faithful Execution Clause or Faithfully Executed Clause. This clause is meant to ensure that a law is faithfully executed by the president even if he disagrees with the purpose of that law. I don’t think this means the President is himself above the law.
Right, so this is an area of constitutional controversy. I should probably restate–I don’t believe the President is above the law, but I do believe it is procedurally not possible to incarcerate him while he is in office. I also believe Trump frankly provided strong evidence that while the President isn’t technically above the law, without impeachment he is maybe *de facto above the law for the time he is in office.
It had been an open question for many years to what degree a President has to even cooperate with a criminal investigation while in office–Trump v. Vance (2020) in a 7-2 decision did rule that the President is not immune from having to respond to a subpoena or participate in the criminal proceedings against him. But that case still left open many questions. At issue in that case were Trump’s tax records, held by his accounting firm Mazars. Mazars would not release the tax records as long as Trump was litigating that the Manhattan DA had no right to them, but within hours of the Supreme Court decision, Mazars released the records.
However, that was a private company obeying a judicial order, with the President as the subject of the effect of it. It is still hard to fully understand how a court can force the person of the President to go anywhere, even with an arrest warrant, it raises a lot of complicated legal and constitutional issues, and many practical ones. The simplest answer has always been that for serious criminality the President was intended to be impeached. The situation where a clearly guilty of a serious crime President simply remained in office, was assumed to not be realistic, but here we are.
It should be added–at the Federal level the DOJ has a long standing analysis it conducted I believe in the 1980s that concluded that it is not appropriate to indict a sitting President–Mueller basically cited this in part, in his decision not to indict Trump. While that isn’t a constitutional ruling, the DOJ is who prosecutes crimes in the Federal system, so absent a major revision at DOJ it would be difficult for Federal charges to proceed. DOJ’s opinion is it wouldn’t be constitutional, but that hasn’t been explicitly settled.
What the Supreme Court did settle is the President isn’t immune from State criminal courts while in office, but that’s still a far cry from saying he could be arrested by them.
So let’s say the President is impeached and convicted by the Senate, and the President refuses to leave the White House. Who is authorized to drag him or her out onto the street? The Speaker of the House? The Senate Majority Leader? I doubt the Secret Service will since they report to the President, and Congress doesn’t have an army I know of.
Once he is impeached and removed via the Senate, he is no longer the President, vested with none of the powers of the office. He can be removed like any other itinerant bum in the White House trespassing–by force. Whoever is the new President, and the mechanisms of the Federal government reporting up to him/her, would see that it be so.
What happens if someone is incarcerated and becomes President while serving their prison sentence? Say John Doe runs for office from his prison cell like Eugene Debbs, but is successful in getting a majority of Electoral votes certified Congress? Could he be sworn in and govern from his cell? If it federal prison can he just pardon himself? If he’s in state prison would federal authorities be obligated to free him by force? I know this is an absurd hypothetical scenario, but given current events…
It does seem crazy, but I think of it like diplomatic immunity. You can’t be directly arrested and/or prosecuted for committing a crime, no matter how egregious. That’s just how the system works.
And there’s a reason for it. It’s a position that’s too important for the regular rules to apply. If the PUSA is accused of murder, and there is a crisis that needs their immediate attention (say, issuing an executive order to provide aid for a natural disaster, or something along those lines) putting them in jail potentially harms many people, which is not in the country’s best interests. The same way that tossing a diplomat in jail might disrupt the ability for two countries to meaningfully and/or peacefully interact with each other, or might harm their relationship in other ways, and that has to take precedent.
They really are above the law in a sense, and for a good reason.
And this is the other thing to remember. There are remedies for this. The President can be impeached, and then prosecuted. (Or they can resign in the face of a looming impeachment as Nixon did, and those protections are removed just the same.) Or, once they are no longer in office after their term expires, they can be prosecuted (as the DOJ is pursuing with Donald Trump). Diplomats can have their status revoked by their home country, and then be subject to prosecution by the local government, or their own government might punish them in some way. While prosecuting a diplomat might be a political problem, shielding someone with diplomatic immunity might also be a political problem.
I’ve read numerous legal opinions that there is nothing legally preventing a President from pardoning themselves, but that in all likelihood it would be grounds for impeachment.
Twice.