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Wednesday, December 13, 2006 

So You've Decided to Arrest the President...

One of my correspondents in the People's Republic e-mailed me this cool article from Straight Dope. If you are like me, you are salivating at the thought of a new season of 24, the best show on television starring a guy named Kiefer. If you remember the end of the last season, (SPOILER WARNING) the attorney general ordered federal agents to arrest that slimy President Logan. That sparked a Straight Dope reader to ask, who can actually arrest a sitting president?

Interesting question, isn't it? Now before all you Democratic Underground readers get in heat and start humping your computer screens, I'm not implying that our current president will be in cuffs anytime soon. Keep dreaming. Next time, try running a presidential candidate that's not a fop. Until then, you'll have to deal with W. Anyway, on to the cool law stuff.

The SD Staff correctly points out that the power to arrest is a pretty simple issue. The FBI and the US Marshals (both mentioned in the reader's question) have broad arrest powers that cover just about anything that they reasonably believe is a felony. The real meat of the discuss has to do with presidential immunity. Can you arrest the president? Let's ask the experts...
For example, at a 1998 Senate hearing on the subject chaired by John Ashcroft, professors Freedman and Turley said the president could be criminally indicted and prosecuted (at least under some circumstances); professors Amar and Bloch said he couldn't. Three former federal prosecutors also testified. Two said the president could be prosecuted; one said he couldn't.
Lots of help there. Ask two law professors a question and you're probably going to get three answers.

The Amar/Bloch position is called sequentialism. Basically, they believe that the president first must be impeached and removed from office before being prosecuted. That sort of follows logically. The impeachment process is spelled out in the Constitution. Also, Article I, Section 3, Clause 7 states that an impeached and removed official is still subject to indictment, trial, etc. after removal. The Freedman/Turley crew says "no way." While the sequentialist view is nice and orderly, we haven't followed it in practice. The article points out...
For one thing, few sequentialists argue that the vice president is immune from indictment while in office, and in fact Vice President Spiro Agnew was indicted prior to expiration of his term. In a 2000 survey of other cases of indictment without impeachment, professor Jonathan Turley points out that judges Robert Collins, convicted of bribery, obstruction of justice, among other things, and Harry E. Claiborne, convicted of tax evasion and filing a false financial statement, were incarcerated jurists who continued to receive their salaries in prison. Some accused federal judges have argued the sequentialist position but in every case the courts have ruled against them. Turley observes that "governors, high state officials, federal cabinet officers, and federal judges have been similarly subjected to criminal indictment and trial before removal."
That historical perspective is strengthened with the fact that Article I, Section 6 of the Constitution explicitly gives Senators and Congressmen limited immunity, but the Constitution is mum about the president and VP. If the Framers were handing out immunity clauses and they didn't put one in Article II, I guess the president doesn't get it, right?

The sequentialists fire back with a favorite court room argument: policy. When in doubt, make the public policy argument. Thomas Jefferson was on that side...
"The leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other, and none are more jealous of this than the judiciary. But would the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?"
Too bad for Jefferson that the Supreme Court wasn't. They went the other way in US v Nixon. The Court said that Nixon was fair game for some subpoena action (absent a national security risk from it).

You shouldn't be shocked that the Office of Legal Counsel (which is basically the president's law firm) believes in the sequentialist position. There's an interesting part of the article about then-Solicitor General Robert Bork adopting the sequentialist view... but only for the president. Agnew got hung out to dry. The article also talks about international law implications. I'd talk about it, but I find international law incredibly boring and... apart from concrete reality.

Anyway, it's a cool article and an interesting Constitutional law question. I owe Erick a beer for the link.

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