Prosecuting and Convicting American Presidents: Myths and Facts
Yes, It can be done.
July 19, 2023
American political lore claims that it’s illegal to arrest or indict a sitting president. That’s false. In 1973, the US Department of Justice created a policy in which they refused to indict a sitting president – Richard Nixon. But this is only their opinion, and DOJ internal policy, which they have maintained to this day.
The Constitution says no such thing. And that’s the only thing that counts.
Only the possible political and logistical calamities prevent an indictment.
Former president Donald Trump is in a heap of trouble. The US Department of Justice has indicted him in Florida for mishandling classified documents. The Manhattan Criminal Court Grand Jury has indicted him for dozens of business fraud counts and for election finance fraud related to hush-money payments to Stormy Daniels. US Justice Department Special Counsel Jack Smith has named him as a target of their investigation into the January 6 insurrection and efforts to overturn the 2020 presidential election results. And the Fulton County, Georgia, District Attorney is reportedly close to indicting him for trying to overturn presidential election results there. I think I listed everything.
REQUIREMENTS TO BE PRESIDENT
Our Constitution lists only three requirements to be president:
“Natural born” does not mean that one must have been born in the United States. It means that one must be a citizen from the moment of birth and not have be naturalized at some later date. You are a natural born citizen if at least one of your parents is a citizen, regardless of where you were born.
That’s why Sen. Ted Cruz – who was born in Canada – is eligible to be president.
The Constitution does not forbid anyone with current, past, or future criminal charges, indictments, trials, or convictions from running for or serving as president. So Trump’s claims that he can’t be arrested, indicted, or tried for crimes while a candidate or an actual president are just bogus.
If he were right, then anyone could commit any crime and avoid arrest and prosecution merely by declaring their candidacy for president.
Two men have run for president from prison:
• Eugene V. Debs, a labor leader and socialist, was convicted of espionage in 1917. He ran against
Warren G. Harding 1920. He lost, but got nearly one million votes.
• Lyndon LaRouche, a noted conspiracy theorist, ran in every presidential election from 1976 to 2004.
But his 1992 campaign against William Clinton operated from prison where he was serving for mail
fraud and campaign fraud conspiracy. He lost too.
While it’s legal to run for president while under indictment, or even behind bars, reality will interfere.
And while we have had presidential candidates in prison, we haven’t had an inmate president. Yet.
How would those logistics work?
We don’t have any of those answers.
Can the president pardon her/himself?
The Constitution doesn’t prohibit it, so there’s really no way to know how any court would rule on the issue.
This scenario probably didn’t occur to our founders, but I doubt they would have approved. Lawyers, scholars, and pundits vary in their opinions, but those with the more legitimate credentials tend to believe that he can’t.
Presidential pardon power only extends to federal criminals. S/he has no power over state criminals or prisons. A governor could pardon or commute a president’s state-issued sentence, but is not required to do so. That should be interesting to watch. Politics are just great.
While it’s unlikely, if we do see a convicted/incarcerated president, s/he surely won’t be the first criminal in the Oval Office.
FOR MORE INFORMATION
Read the Constitution
US Department of Justice: A Sitting President’s Amenability to Indictment and Criminal Prosecution.
Business Insider: You Can Run for President From Prison
Secret Service: Frequently Asked Questions
Presidential Pardons and a Constitutional Crisis
Patricia A. O'Malley
Social Policy & Programs Consulting ~ Community Matters
412-310-4886 ~ firstname.lastname@example.org
Copyright Patricia A. O'Malley ~ All rights reserved
Social Policy & Programs Consulting
Training and Services for agencies working toward social and economic justice