Can a President be arrested, indicted, prosecuted, and punished? Although some believe that these possibilities are unconstitutional, even absurd, I demur. For a host of reasons, the presidency lacks immunities from criminal process and punishment. First, some constitutions from the Founding Era included express executive immunities, not relying upon shadowy inferences. This practice sheds light on how to best read our Constitution. Second, though James Madison sought the creation of express presidential privileges at the Philadelphia Convention, he failed. Third, during the ratification fight, many denied that the President would have special immunities of any sort, with some noting that presidents had fewer privileges than members of Congress. Fourth, a sitting President was arrested and essentially admitted his guilt, never asserting that the Constitution shielded him from arrest, prosecution, or punishment. Fifth, the Constitution supplies a constitutional solution when circumstances, including arrest or incarceration, incapacitate a sitting President. The “Acting President”—the Vice President—takes over, ensuring continuity and energy in the Executive. Lastly, the Constitution authorizes Congress to supply a statutory immunity. By ordinary law, Congress can grant immunities that the Constitution itself never accords. Further, it can curb, expand, or eliminate its grant as circumstances warrant. Because Congress can solve any difficulties that might arise from the arrest, prosecution, and punishment of our presidents, there is little need to infer or imagine a constitutional solution.
Citation
Saikrishna Prakash, Prosecuting and Punishing Our Presidents, 100 Texas Law Review, 55–113 (2021).