Let’s say there’s pretty ample evidence that a sitting member of Congress, a sitting Supreme Court justice, or even the sitting President or Vice President, committed a treasonous act. Define “treason” and “ample evidence” as you will.
Who actually initiates criminal charges against the individual? The DC prosecutor? Or is Congress expected to “police” its own (as well as the POTUS/VPOTUS and the Supreme Court)?
What about other, run-of-the-mill crimes? Let’s say Congressperson A is accused of, say, rape, and the DNA matches? Is it up to the DC prosecutor to pursue criminal charges (assume the act took place in DC)?
There probably isn’t anyone who works exclusively on treason, but the Department of Justice has sections devoted to public corruption and to national security. If it is a legislator or a judge under suspicion, there would likely be some cooperation between offices like those to assemble an investigation and prosecution team, along with the criminal division of the US Attorney’s Office where an indictment would be brought (DC, or perhaps where the offender lives).
If the office of the president was under suspicion, the Attorney General would probably have to appoint a special prosecutor (i.e., someone with federal authority but outside the DOJ hierarchy).
Impeachment would be a totally separate action track. That would be carried out by Congress at the time of its choosing.
It only needs to be the first step for the president, as the president has immunity the others don’t. Plenty of judges and members of Congress have been tried first in a criminal court, with impeachment or expulsion proceedings following based on the results of the trial.
It is probably obvious, but what immunity does the President have?
Clearly, as the chief executive officer, senior statesman and commander in chief, the president defines the terms of national security. So Mr. Pres can simply decide that some fact or secret isn’t a secret any longer, or keep it secret and share it with a foreign power and no one could challenge him on that decision. But that really isn’t an immunity. Mr. Pres didn’t break a law, simply changed the facts. So what immunities does the President enjoy? Executive Privilege?
The president probably has immunity from criminal prosecution while in office. (“Probably” because it’s never been definitively dealt with, but it’s a pretty widely-held opinion. People’s opinions are flexible, though, so I guess an extreme enough case could change minds.)
But yeah, I think it would also definitely be hard to prove a charge of treason if the accused was the president at the time of the acts. A lot of stuff that would be treason for anyone else would just be foreign policy if the president did it. It would probably have to involve something closer to home, like the president funneling arms or cash to a domestic insurrection or something like that.
I would say that members of Congress as a whole have greater protections against arrest, owing to Article I, section 6:
Some responses have opined that impeachment of various officials would come before arrest and trial. This is not necessarily the case. To use just one example, former congressman Jim Traficant was indicted and convicted on corruption charges in spring 2002 before being expelled by the House that summer. In another example, former judge and I believe still current congressman Alcee Hastings was tried on bribery charges while being a sitting Federal judge, but acquitted in 1983. Congress later impeached him from his judgeship in 1989.
It is quite clear, as someone else noted before, that criminal charges and discipline by Congress are parallel tracks, with no requirement that one precede the other.
If the president can pre-emptively pardon himself (and if I correctly recall past discussions here, the consensus seems to be that he can), then he has effective immunity from criminal prosecution.
I think the difference between can’t be arrested and can’t be charged may be the issue. The assumption is often that you must be arrested to be charged and tried.
Side question - how does the “returning from” part work? You can’t arrest him for a misdemeanor on his way to Congress, that part I get. Nor during a session. But do they have to wait until he gets home afterwards, and arrest him once he crosses the threshold? What if he stops to go shopping or something?
What if he just sits in the driveway outside his house?
There’s a little. The constitutional provision is referred to as the “Speech or Debate Clause” and Wikipedia mentions a few cases.
There’s at least one more I don’t see – Rep. Kennedy was arrested a decade ago after a car accident outside the Capitol. He was reportedly driving drunk. After the crash, Rep. Kennedy asserted that he was on his way to a vote even though the house had adjourned several hours before. Capitol police didn’t arrest him on site or administer field sobriety tests. Instead, one officer drove him home. When Kennedy was later charged, the press speculated whether he would invoke the speech or debate clause. He then plead guilty to driving under the influence of prescription drugs.
It means a legislative session, not a daily session. So you have to wait until the end of the congressional session (and for the R/S to get back to his/her home state if traveling).
I think a President that actually went so far as to pardon himself would be garunteeing his own impeachment and removal from office. Also there’d be a huge push for a constitutional amendment to prevent it from ever happening again.