It has been made very clear lately that a sitting President cannot be indicted. However, can the President be arrested? And if yes, by whom?
My understanding is the Department of Justice has a standing policy stating indictment is not an option. This dates to a memorandum from 1973 and another memo written in 2000. The memo from 2000 says not only is an indictment not possible, criminal prosecution is not either.
All of this is based on the idea that only Congress can take action in this case through impeachment.
This makes me wonder if it would be possible to arrest or detain a President for a crime such as murder. For the sake of argument let’s say this act is committed in front of multiple witnesses and was not in self defense.
If indictment or prosecution are off the table, what would be allowed in such a situation? Could the POTUS be taken into custody by law enforcement? Could anything be done to prevent him/her from fleeing to another country to evade the law?
Obviously, impeachment and removal from office would be swift but those actions would take some time, days at a minimum, so detaining the President would be necessary. How would this be likely to play out?
I’m not a lawyer, much less a constitutional expert but my speculation is that the plan would be the President commits a serious crime, he gets arrested, and the Vice President and the cabinet would invoke the 25th Amendment and declare that the President is unable to discharge the duties of his office due to the fact that he’s being held in police custody. The VP would become the acting President and would remain so while the President goes through the legal process. Federal policy says a “sitting President” cannot be indicted but, in my opinion, this term would not apply to a President temporarily removed from office by the 25th Amendment.
The problem with that Little Nemo is that as far as I can tell, there is no plan for such a situation. And who exactly would place the President under arrest? Where would he be held? Would the Secret Service agents who protect him allow any of this?
And invoking the 25th Amendment would take time, time to assemble the required Cabinet officers and time to have hold the vote. During all of this time going by the President would likely be able to find a court that would demand his release, since he is basically immune from prosecution while in office, and then how would he be stopped from making a run for it?
The bar on arrest/indictment is a federal policy, based on the President’s position as head of the executive branch of the federal government.
But what if, to take a crazy hypothetical, the Prez shot someone on Fifth Avenue, New York? Could New York’s Finest arrest him under state law? that wouldn’t raise any issue about the President being put on trial by his own subordinates.
I’m definitely giving more consideration to the argument that if the Framers intended to give the President immunity from prosecution, they would have put it in the Constitution. Like how they explicitly protects members of Congress from certain arrests.
When Mueller gave his statement he said ‘a president cannot be charged with a federal crime when he is in office’.
To me that seemed like there could be two subtle issues with that.
When the president leaves office due to impeachment, losing reelection or serving a full two terms he can be charged federally.
Why did Mueller say ‘federal crime’? Was he implying a state government can arrest a sitting president even if the federal government cannot? Or am I reading into it too much? I know new York state is doing multiple investigations into trump and his family, some criminal. Or was he just discussing what he did since he worked for the federal government? But Mueller team worked with new York state in their investigation.
The DoJ probably doesn’t have an opinion or internal guidelines on whether the President can be charged with state crimes, as they’re involved with prosecuting or declining to prosecute federal crimes only. Whether a president can be prosecuted for state crimes is for the Supreme Court to resolve.
I think you missed the point. Since the Constitution expressly protects congressmen in such a limited way, it’s hard to believe that the Constitution implies vast protection for the President.
“There are . . . incidental powers belonging to the executive department which are necessarily implied from the nature of the functions which are confided to it. Among these must necessarily be included the power to perform them. . . . The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office, and, for this purpose, his person must be deemed, in civil cases at least, to possess an official inviolability.”
Not binding on anyone, of course, but that passage was cited favorably in Nixon v. Fitzgerald. And Justice Breyer’s concurrence in Clinton v. Jones has a pretty good historical discussion of the idea of presidential immunity.
I would think the logic of this would extend to state prosecution (I suppose under the Supremacy Clause), but I don’t know.
His assertion the he couldn’t indict the president was based on FBI guidelines, which therefore only apply to those pursuing federal crimes. So I wouldn’t read it as saying one way or another about state crimes. That would have to be hashed out in the courts, most likely the Supreme court. Note it that there isn’t even legal consensus on the presidents unindictability on federal charges, this was just a policy that FBI had, and Mueller felt he needed to follow.
I suspect if a local beat cop actually tried to approach the President while armed and lay hands on him to effect an arrest, he’d likely get his ass kicked / shot by the Secret Service.
I’m not saying that the idea of presidential immunity is a bad one, though perhaps there ought to be limits on it. I am taking issue with the idea that it is being implied through a variety of unclear legal opinions that have no clear boundaries. Could the President take a trip to Guantanamo and just murder the terrorists he doesn’t like, and nobody would stop him?
If Trump whipped out an Uzi and began shooting, the Secret Service would “restrain” him, get him into the limousine, and whisk him off to the usual undisclosed location. Then a quick emergency meeting of the Cabinet heads, and President Pence would begin preparing to address the nation.
I don’t know if that would legally count as “arrest”.
I rather suspect it would be treated much as was the guy who set himself on fire near the White House yesterday. Once the Secret Service is satisfied there is no longer a threat, he would be released to the proper authorities for arrest, indictment, and trial. Which was, unfortunately or otherwise, not necessary for the person mentioned above.
I will make an attempt to listen to the podcast you link to but I won’t be able to do that for a couple of days. So, I will second Czarcasm and ask, can you give us the bottom line?
While I agree invoking the 25th Amendment would certainly be the fastest way to deal with such a situation, I don’t know how the Secret Service would be justified in whisking the POTUS off to be held somewhere. There are multiple situations where past chief executives have gone rogue and not done what the Secret Service wanted and they have been reluctant to stop any of them. I suppose a capital offense might cause them to overlook any regulations about that.
But even if the 25th could be invoked quickly, Section 4 allows the President to dispute such declaration with Congress ultimately deciding the issue, provided the Veep and Cabinet officers again say he/she should be removed. All of that is likely to take many hours, if not days. Under what authority would anyone be allowed to detain the POTUS in question to prevent escape and again, who would that be?
Since Mueller did specify there was no way to indict for a Federal crime, I guess maybe a state or local police agency could arrest him/her but I think the point HD made above might prevent that.