Can the President of the United States be arrested?

[Slash1972]

@Shodan

So - [ul][li]Trump shoots someone[/li][li]The Secret Service immediately removes him from the scene[/li][li]Trump says “take me to Air Force One so I can fly out of the country”[/li][li]The Secret Service says 'Sorry, Mr. President, you are under arrest" and takes him someplace secure, like the White House[/li][li]The Secret Service then sits on him and holds him down while the White House Chief of Staff gets on the phone with the Veep[/li][li]The Veep does a conference call with the other heads of cabinets, or they all fly in from wherever they are at the moment[/li][li]The only agenda item at the meeting is “Resolved: Trump can’t very well run the executive branch from a jail cell, so he is unable to perform his duties. All in favor say Aye”. [/li][li]Pence becomes Acting President[/li][li]48 hours pass. [/li][li]Trump is released, and immediately fires off a letter saying, “I’m back! I’m the President!”[/li][li]Everyone else says, “Not so fast - we got four days to consider this. We’ll get back to you. And, you’re gonna need a lawyer…”[/ul][/li]Regards,
Shodan

I agree that this is what would happen.

[WillFarnaby]

The idea that people think that the arrest of a chief executive will simply be a legal dispute is mind-boggling to me. I could see such a thing happening in a modest republic, but an empire, no way.

[Little_Nemo]

@Snowboarder_Bo

Okay, so let’s look at this.

POTUS slaps a baby and then slaps Mom when she protests. A cop sees the whole thing and moves to arrest the POTUS. The Secret Service moves to disallow this.

Now what? :dubious:

I don’t think the President would be arrested for a crime like slapping babies. The OP asked what would happen if the President committed a serious crime like murder.

[Little_Nemo]

@WillFarnaby

The idea that people think that the arrest of a chief executive will simply be a legal dispute is mind-boggling to me. I could see such a thing happening in a modest republic, but an empire, no way.

How things would be handled in an empire isn’t relevant to this thread. Despite your often expressed beliefs, the President is not the legal equivalent of an Emperor (as is demonstrated by the fact that we four living former Presidents). In the end, it’s just a job.

[Little_Nemo]

@Ravenman

But this is just a chicken-and-egg issue. Until someone explains to me that legality of arresting someone who under bad policy cannot be subject to an Article III proceeding, I assume that no Federal authority can arrest a President. And yet if he isn’t incapacitated by jail, the case for the 25th Amendment is weak. So what comes first, the President is arrested in a manner that is highly questionable if not illegal, and then the Cabinet votes him out; or he’s booted and then arrested?

An arrest and an indictment are two separate events and they can occur in either order. So in this particular case, you would want to conduct the arrest first. The arrest would give you cause to temporarily remove the President from office. Being removed from office, temporarily or permanently, eliminates the presidential immunity from being indicted. So then you indict him. There’s nothing illegal about any step or the process as a whole.

[Ravenman]

@Little_Nemo

An arrest and an indictment are two separate events and they can occur in either order. So in this particular case, you would want to conduct the arrest first. The arrest would give you cause to temporarily remove the President from office. Being removed from office, temporarily or permanently, eliminates the presidential immunity from being indicted. So then you indict him. There’s nothing illegal about any step or the process as a whole.

But the precise reasoning behind the “President can’t be indicted” view is that an indictment would be an excessive burden on the Chief Executive, as well as the absurdity of the Chief Executive ultimately prosecuting himself. As I said before, I have serious problems with this view, but I understand the logic.

My major point is that the exact same logic would apply to an arrest: it’s a pretext to getting the President to stop doing his job. I just can’t see how the OLC view on “no indictments” is not also a bar to arrest… meaning that the Secret Service or whomever would be usurping Presidential power in order to effect the arrest.

Within the confines of the logic of the OLC opinion, how can you argue that indictments are not allowable because they would bother the President, but arrests are allowable for some reason?

[WillFarnaby]

@Little_Nemo

How things would be handled in an empire isn’t relevant to this thread. Despite your often expressed beliefs, the President is not the legal equivalent of an Emperor (as is demonstrated by the fact that we four living former Presidents). In the end, it’s just a job.

Many political commentators from all ideological perspectives have agreed that the US has become an empire. Let’s not pretend. This is not a condo president we are talking about here.

There are some who cling to magic words of centuries-old documents. This may be a way of garnering support for or against the president, but in reality the words mean nothing. It is about which side holds the power, most importantly the military and media.

[WillFarnaby]

Arresting someone involves the physical capture of the person’s body. If the military and remaining executive branch are fully supportive of the president not being arrested, who will capture the president? T? Lol

[Shodan]

@Ravenman

I’d be curious if someone other than Shodan can establish how a person can be arrested if it is known beforehand that the person enjoys immunity from prosecution for their actions.

The President isn’t immune from prosecution. He is also not immune from arrest.

DOJ policy is that a sitting President cannot be indicted. Impeaching and removing from office means that the President is no longer a sitting President. He or she then can be indicted. That’s why Ford pardoned Nixon.

The Secret Service could therefore arrest a President so that he or she could be impeached, and/or so that he or she could be indicted if and when removed from office.

Diplomatic personnel have immunity, but they can be arrested, even though they have immunity.

The President is not above the law. No one is. There are laws (and policies) about impeaching him or her first, but the other laws still apply.

Regards,
Shodan

[Little_Nemo]

@Ravenman

But the precise reasoning behind the “President can’t be indicted” view is that an indictment would be an excessive burden on the Chief Executive, as well as the absurdity of the Chief Executive ultimately prosecuting himself. As I said before, I have serious problems with this view, but I understand the logic.

My major point is that the exact same logic would apply to an arrest: it’s a pretext to getting the President to stop doing his job. I just can’t see how the OLC view on “no indictments” is not also a bar to arrest… meaning that the Secret Service or whomever would be usurping Presidential power in order to effect the arrest.

Within the confines of the logic of the OLC opinion, how can you argue that indictments are not allowable because they would bother the President, but arrests are allowable for some reason?

I’ve already made the argument. Indictment and arrest are two different things. So a ban on one is not a ban on the other, implied or otherwise. And there’s no such thing as an implied immunity; if there was, the DOJ wouldn’t have to issue an explicit policy giving a sitting President immunity from indictment. The fact that they didn’t issue an equivalent policy giving the President immunity from arrest means no such immunity exists.

Let’s look at this from the other end. Does it make sense that the President be immune from arrest? What do you think happens if the President starts murdering people? Our legal system just throws up its hands and says there’s nothing it can do?

It’s absurd to think we would just allow somebody to continue committing murder while we slowly work our way through an impeachment proceeding.

[Little_Nemo]

@WillFarnaby

Many political commentators from all ideological perspectives have agreed that the US has become an empire. Let’s not pretend. This is not a condo president we are talking about here.

Even if the United States is an empire, it still doesn’t make the President an Emperor. A country can have imperial control over other places without its leader having imperial control over the country.

[UltraVires]

@Sleel

There are a lot of elements that kind of tie together, so actually there’s not just one specific part of one episode that ties everything up. One of the most surprising things I’ve learned from listening is just how many things we erroneously assume are codified in law relating to the Presidency. There are very few actual laws and specific regulations. Much of what we assume is “Presidential” behavior is nothing more than Presidents conforming to the norms of those who previously held the office.

Episodes 5 (Presidential Immunity) 10 (Impeachment) and 30 (The 25th Amendment) are the ones that talk about legal means to remove a President. They talked through some cases that set precedent, but the gist is that a sitting President probably cannot be tried in any court while in office, or at least it hasn’t been successfully done yet, but you can try to remove him from office through impeachment or the 25th Amendment, both of which are Congressional powers. Starting impeachment proceedings is not particularly easy and (if I remember right) hasn’t successfully removed a President from office yet; Nixon resigned before he could be impeached.

I actually took another look though the back-catalog and found that they didn’t specifically cover the OP’s question, though. Oops.

From what they did cover, its still likely that only Congress really has the authority to detain a sitting President or remove him from office. The Secret Service is obligated to protect him from harm, but not arrest … but there’s no real established precedent for what happens if a President commits a clear-cut crime. Like so many other situations in this presidency, it all depends on what those involved feel like doing since there’s precious little actual law, the authority is murky, and there’s virtually no precedent to follow.

This is basically correct. The Constitution is a short document and even as expansive as federal laws are, it would seem silly to have procedures in place for every wild hypothetical that any person could think up. Laws are tailored to human behavior and if it doesn’t cross someone’s mind that a president might pull out an automatic weapon and start blasting away at people, then the law has a hole in it. But, again, that’s not altogether bad. I would rather our legislators be attempting to solve real and pressing issues instead of imagining crazy situations.

We are not new at this. Prior to and during the Civil War there was a threat to liberty and the independence of the judiciary by certain acts that Lincoln took. Congress retroactively affirmed them as a necessary part of putting down a rebellion.

So if Trump were to murder someone in broad daylight in front of witnesses, I think that anyone, secret service agent or no, would detain him and he would not be going anywhere. No court would order him released, nor would anyone release him even if ordered. If some people did, we may very well have a civil war on our hands and a constitutional crisis. But in such an obvious case, very few would side with a murderous president, so the crisis would be small.

The 25th amendment would be invoked, Trump stripped of his powers, he be impeached and removed by voice vote, and prosecuted. The people who detained him, even if found to be in technical violation of a law or the Constitution would be excused in their actions due to the emergency nature. A Constitutional Amendment would be rapidly passed stating that presidents could be arrested in this situation.

I hope the OP was just asking questions and not attempting to equate this with any situation we have now as they just are not comparable.