# Who can arrest the President? **URL:** \ **Category:** Cecil's Columns/Staff Reports\ **Created:** [December 12, 2006, 5:09pm UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834 "2006-12-12T17:09:05Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [December 12, 2006, 5:09pm UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/1 "2006-12-12T17:09:05Z")
[http://www.straightdope.com/mailbag/mprezarrest.htm](http://www.straightdope.com/mailbag/mprezarrest.htm) 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). ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 12, 2006, 5:41pm UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/2 "2006-12-12T17:41:39Z")
[QUOTE=Elendil’s Heir] [http://www.straightdope.com/mailbag/mprezarrest.htm](http://www.straightdope.com/mailbag/mprezarrest.htm) A fine report on a knotty legal issue. [/QUOTE] Thanks. > [@](#): > > I’d be interested to know what Justice Joseph Story wrote on the question (referred to in passing in the article). I’ll have to dig it up. Maybe I’ll have time later today. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 12, 2006, 5:46pm UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/3 "2006-12-12T17:46:59Z")
[QUOTE=Gfactor] I’ll have to dig it up. Maybe I’ll have time later today. [/QUOTE] Ah. Here’s what Turley had to say about Story: [QUOTE=Turley, From Pillar to Post] Justice Story is often quoted as stating that “the President cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office.” n92 When viewed as a whole, n93 the statement by Story is replete with language that appears to contradict the suggestion that he is endorsing a broad criminal immunity theory. Story begins the passage by stating that these are “incidental powers, belonging to the executive department, which are necessarily implied from the nature of the functions, which are confided to it.” n94 Story appears to be stating the obvious that giving official duties to the President necessarily means that he cannot be harassed or hindered in his use of those powers. Justice Story stressed that inherent in the executive powers given in the Constitution “must necessarily be included the power to perform them, without any obstruction or impediment whatsoever.” n95 Justice Story was obviously aware that a President [\*1069] could be restrained by the judicial branch or impeached by the legislative branch. However, in the “discharge of the duties of his office,” no interference or harassment was allowed by the Constitution. Justice Story specifically refers to “the power to perform” lawful acts of office, not a temporary or permanent immunity for murder or other crimes. The ability to perform unlawful acts is not “implied from the nature of the functions” of a president’s office and are in fact the antithesis of his duties. Moreover, this oft-cited line continues in a way that only adds uncertainty to Story’s meaning. Story completes the line by stating: “and for this purpose his person must be deemed, in civil cases at least, to possess an official inviolability.” n96 It is far from clear that Story was even thinking of the question of liability for criminal acts committed for non-official purposes. Instead, the passage reads as support for the separation of powers principles governing official acts by Presidents. While Justice Story may have supported, as Professor Amar suggests, n97 the existence of implied immunities for official acts, this quote offers nothing to advance an argument for permanent or temporary immunity for criminal acts unrelated to a federal office. n98 It is simply not clear as to the scope of Justice Story’s view of immunity or the true relevance of his reference to “arrest, imprisonment, or detention” n99 when a president is not acting in “the discharge of the duties of his office.” n100 [/QUOTE] ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [December 12, 2006, 8:08pm UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/4 "2006-12-12T20:08:42Z")
Thanks. That was about as clear as mud (Story’s fault, not yours!). Just as well it was omitted from the SD article. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [December 12, 2006, 10:30pm UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/5 "2006-12-12T22:30:17Z")
What I’m wondering about… > [@](#): > > Another issue raised by the conviction of a sitting president is pardon. Can the president pardon himself? Once again, there is no clear answer in the Constitution. Amar says a sitting president cannot pardon himself; ex-White House counsel John Dean says, in effect, “why not?” From Article II, Section 2 of the Constitution: > [@](#): > > …and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. 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. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 12, 2006, 11:47pm UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/6 "2006-12-12T23:47:35Z")
[QUOTE=Chronos] 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. [/QUOTE] 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. > [@](#): > > 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). 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? > [@](#): > > 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. 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)? ---
**Author:** ![Bookkeeper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bookkeeper/32/281_2.png) [@Bookkeeper](https://boards.straightdope.com/u/Bookkeeper)\ **Post date:** [December 13, 2006, 12:14am UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/7 "2006-12-13T00:14:36Z")
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. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 13, 2006, 12:25am UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/8 "2006-12-13T00:25:34Z")
[QUOTE=Bookkeeper] 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. [/QUOTE] 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. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [December 13, 2006, 2:09am UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/9 "2006-12-13T02:09:30Z")
[QUOTE=Gfactor] …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. … [/QUOTE] 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. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 13, 2006, 2:33am UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/10 "2006-12-13T02:33:06Z")
[QUOTE=Elendil’s Heir] 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. [/QUOTE] > [@](#): > > There was little debate on the pardon power - only a few verbal exchanges and a couple of motions.(53) Roger Sherman, distrustful of vesting a king-like power in the President, wanted to require the Senate’s consent to pardons, but this proposal was overwhelmingly voted down.(54) Luther Martin suggested a Massachusetts-style ban on preconviction pardons, but withdrew the motion after James Wilson pointed out that pretrial pardons preempting prosecution might be needed to induce coconspirators to testify against their leader.(55) The presidential pardon power was emerging as more akin to the broad power of the King than the reduced or shared powers of the states, governors. > > At that point, the debate turned to matters that more directly concerned the self-pardon issue. Using a Danby-like hypothetical, Edmund Randolph argued that pardons for treason should be excluded from the President’s authority.(56) Allowing the President to pardon treason, Randolph said, was “too great a trust. The President may himself be guilty. The Traytors may be his own instruments.”(57) James Wilson responded that pardons for treason could be very important and that the power was best placed solely with the President.(58) Highlighting the distinction between Randolph’s hypothetical and the Danby case, Wilson pointed out that “[i]f [the President] be himself a party to the guilt he can be impeached and prosecuted.”(59) Brian C. Kalt, _Pardon me? The constitutional case against presidential self-pardons_, 106 Yale L. Rev. 779 (1996)\* > [@](#): > > Towards the end of both Bush the Wiser’s (Iran-Contra) You weren’t alone. > [@](#): > > and Clinton’s (Monicagate) presidencies, friends and I speculated that he might pardon himself before he left office, 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): [News Articles - FindArticles](http://www.findarticles.com/p/articles/mi_qa3805/is_200308/ai_n9241568) (arguing that it is, but noting the majority of scholars disagree). ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [December 13, 2006, 3:02am UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/11 "2006-12-13T03:02:58Z")
What would a “Danby-like hypothetical” be? Re: some traitor from British history, I presume… ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 13, 2006, 3:15am UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/12 "2006-12-13T03:15:26Z")
[QUOTE=Elendil’s Heir] What would a “Danby-like hypothetical” be? Re: some traitor from British history, I presume… [/QUOTE] Heh. I guess you aren’t inside my head. He’s referring to this: [Thomas Osborne, 1st Duke of Leeds - Wikipedia](http://en.wikipedia.org/wiki/Thomas_Osborne,_1st_Duke_of_Leeds#Bribery_and_Impeachment) which led to this: [Act of Settlement 1701 - Wikipedia](http://en.wikipedia.org/wiki/Act_of_Settlement_1701) which said, among other things: > [@](#): > > That no pardon under the Great Seal of England be pleadable to an impeachment by the Commons in Parliament. [The act of settlement, 1701 | Monarchy | The Guardian](http://www.guardian.co.uk/monarchy/story/0,2763,407239,00.html) ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [December 13, 2006, 5:39pm UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/13 "2006-12-13T17:39:03Z")
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. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 13, 2006, 5:48pm UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/14 "2006-12-13T17:48:14Z")
[QUOTE=DSYoungEsq] 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. [/QUOTE] 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. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [December 13, 2006, 6:12pm UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/15 "2006-12-13T18:12:42Z")
[QUOTE=Gfactor] 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. [/QUOTE] 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.) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 13, 2006, 9:32pm UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/16 "2006-12-13T21:32:54Z")
Outstanding staff report on a very involved question. Well done! ---
**Author:** ![Rusalka](https://avatars.discourse-cdn.com/v4/letter/r/ecd19e/32.png) [@Rusalka](https://boards.straightdope.com/u/Rusalka)\ **Post date:** [December 14, 2006, 9:22am UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/17 "2006-12-14T09:22:41Z")
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… ---
**Author:** ![Rusalka](https://avatars.discourse-cdn.com/v4/letter/r/ecd19e/32.png) [@Rusalka](https://boards.straightdope.com/u/Rusalka)\ **Post date:** [December 14, 2006, 9:24am UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/18 "2006-12-14T09:24:11Z")
Sorry, I meant “no crime serious enough” for immediate arrest and incarceration. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [December 14, 2006, 9:33pm UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/19 "2006-12-14T21:33:52Z")
[QUOTE=Rusalka] 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… [/QUOTE] 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_. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [December 14, 2006, 9:57pm UTC](https://boards.straightdope.com/t/who-can-arrest-the-president/383834/20 "2006-12-14T21:57:57Z")
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_. 🙂 [Next page](https://boards.straightdope.com/t/who-can-arrest-the-president/383834.md?page=2)