Who can arrest the President?


A fine report on a knotty legal issue. I’d be interested to know what Justice Joseph Story wrote on the question (referred to in passing in the article).

I recall that President Ulysses S. Grant liked racing his horses on the streets of Washington, D.C., and once received a speeding ticket from a city policeman. The cop didn’t want to write it, but Grant insisted, “Officer, do your duty.” If a President may accept a ticket for a traffic offense, I certainly think he’s subject to arrest for the commission of a crime (although these days, the Secret Service would probably object quite strenuously).


I’ll have to dig it up. Maybe I’ll have time later today.

Ah. Here’s what Turley had to say about Story:

Thanks. That was about as clear as mud (Story’s fault, not yours!). Just as well it was omitted from the SD article.

What I’m wondering about…

From Article II, Section 2 of the Constitution:

That’s certainly clear that the President can’t pardon himself from impeachment, and it’s probably not too much of a stretch to think that the Founding Fathers intended, by that, that the President can’t pardon himself at all. Even if that’s too much of a penumbra for you, it could be avoided simply enough by just impeaching him first, before the criminal trial (which may or may not be necessary, but is certainly allowed, and might be advisable). I would think that, once impeachment proceedings are initiated, it’s a “case of impeachment”, and that he could therefore also not pardon himself for the subsequent criminal trial.

I agree. He can’t pardon himself in cases of impeachment. Scholars disagree, in part, precisely because the Constitution is explicit about when he can’t–“in cases of impeachment.” It cuts both ways. On the one hand, you could speculate that they were thinking of impeachment and what happens after. On the other, well, maybe not.

That’s one of the points that gets made a lot. The whole problem could be avoided by impeaching him first. Of course, what happens if he is impeached and acquitted?

Again we run smack up against the ambiguity of the text. It’s clear from the document that the adopters of the Constitution (or at least its drafters) meant to make a clear distinction between criminal proceedings and impeachment. “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

But they didn’t say the President can’t pardon himself, and indeed the impeachment exception doesn’t apply solely to the President. It applies to his pardon power–he can’t pardon any official who gets impeached. What did the drafters and adopters have in mind? There are a few possiblities, really:

  1. They thought the President would never even try to pardon himself. Possible, but it begs the question.
  2. They intended to maintain the distinction between impeachment and criminal matters. Possible. Consistent with the text. I think
  3. They intended cases of impeachment as shorthand for “cases of impeachment or criminal cases against the President.” Possible.
  4. Their “intent” is hard to describe because it was more complex and involved conflicting interpretations and intentions of multiple individuals. Possible. Consistent with recent scholarship, generally, on original meaning.
  5. Nobody thought about it at all. They didn’t want the President to prevent the impeachment of a favored cabinet officer (or what have you) by pardoning that person. They never considered the hypothetical situation where the President pardons himself. Therefore, there was no “intent” at all.
  6. Some combination of these.
  7. Some others that I didn’t think of in the time alotted.

And of course, this assumes that we are originalists of the original meaning school. A textualist would have a different set of problems addressing the argument, and a non-originalist would have yet a different set of problems. A structuralist would probably agree that it doesn’t make sense to prosecute a President who can pardon himself. But the question remains, does that mean that a sitting President can’t be prosecuted (because he could pardon himself) or does it mean that a sitting President can’t pardon himself (because he can be impeached and prosecuted)?

I suspect the issue is irrelevant, as if impeached and acquitted, there is no conviction to be pardoned, while if impeached and convicted, he/she would be removed from office and would no longer have the power to pardon.

If impeached and acquitted [by the Senate], which is what I meant, anyway, the President remains in office **and ** subject to prosecution, at least after he leaves office. So there is a future prosecution to be avoided by the pardon.

I would lean towards #5, myself. The Constitutional Convention didn’t spend a lot of time on the pardon power, compared to the composition of the Senate or the method for electing the President, for instance. IMHO, the President may pardon himself but would be condemned by history, and most Presidents care a lot about how history views them. Even Nixon didn’t pardon himself, and he was as venal and as self-interested as they come (again IMHO).

Towards the end of both Bush the Wiser’s (Iran-Contra) and Clinton’s (Monicagate) presidencies, friends and I speculated that he might pardon himself before he left office, have the Secretary of State or some other respected/trustworthy Federal official witness it but be sworn to secrecy, and then produce the pardon if and only if Federal criminal charges followed his White House departure. That would be an interesting constitutional issue, too.

Brian C. Kalt, Pardon me? The constitutional case against presidential self-pardons, 106 Yale L. Rev. 779 (1996)*

You weren’t alone.

The Dean Article cited in the staff report is from that era.

  • Of course this assumes that the secret Con Con debates are even relevant to establish the intent of those who adopted the Constitution. See, Vasan, & Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 92 Georgetown L.J. 1113 (2003): http://www.findarticles.com/p/articles/mi_qa3805/is_200308/ai_n9241568 (arguing that it is, but noting the majority of scholars disagree).

What would a “Danby-like hypothetical” be? Re: some traitor from British history, I presume…

Heh. I guess you aren’t inside my head. He’s referring to this: http://en.wikipedia.org/wiki/Thomas_Osborne,_1st_Duke_of_Leeds#Bribery_and_Impeachment

which led to this: http://en.wikipedia.org/wiki/Act_of_Settlement_1701

which said, among other things:


If the President has the power to pardon himself, he doesn’t have to await trial and conviction; he could prospectively pardon himself from any crime he may have committed, one would think.

And please, let’s not talk about “penumbras.” That’s a dirty word in constitutional law; I wish to goodness it had never been used.

Right. If he can do it, he can do it any time after he commits the (federal) crime. Of course, if that happened, and word got out, he could be impeached.

So, to take an extreme example, on the day before the last day in office, the President could commit any offence (like selling all the nuclear weapon secrets to a terrorist organisation, or killing the Vice President), then immediately pardon himself. Given the time frame, there would (of course) be no chance of impeachment.

(However, killing the VP might be an office under relevant state law, so he might want to do it in the District of Columbia to avoid that unpleasantness.)

Outstanding staff report on a very involved question.

Well done!

Wait a second, take this to the extreme: are you saying if a president hypothetically goes nuts and becomes a serial killer, and the police find out about it while he’s still in office, they wouldn’t be able to arrest him?? He could continue killing people until Congress was able to get around to impeaching him a few days later? No crime too serious for immediate arrest and incarceration? I find that rather hard to believe…

Sorry, I meant “no crime serious enough” for immediate arrest and incarceration.

As with all such things, it only awaits an example like yours to result in a definitive answer, one which will be quite practical, more likely than not.

Of course, the whole concept of your hypothetical is so silly that it can be considered a reductio ad absurdem.

And the 25th Amendment could be brought into play, with the President being declared unable to discharge the duties. The President could then immediately be arrested.

See further details in my new airport novel: Caveat Lector. :slight_smile: