Can the President Be Arrested?

By Nick Levinson

Criminal law enforcement against the sitting President of the United States, Donald J. Trump, has become a prospect given news stories in early . Would arrest, indictment, trial, conviction, sentence, and imprisonment of a sitting President be Constitutional if it would be Constitutional against an individual who is not the President?

Apparently, it is debatable. In , several people had various views on Constitutional law on point. They’re summarized in Can We Indict a Sitting President?, by Susan Low Bloch (Georgetown Univ. L. Ctr., ) (<http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2573&context=facpub>, as accessed , or see http://scholarship.law.georgetown.edu/facpub/1560/) (author law professor at Georgetown University Law Center).

I don’t know how a statute of limitations would be affected, whether it, in effect, would be suspended during the Presidential term.

Civil litigation is fundamentally different from criminal, but there is a Supreme Court ruling on Presidential immunity in a Federal civil case, unanimously denying that immunity could always be available, although leaving the possibility of immunity in some situations. Clinton v. Jones, 520 U.S. 681 () (<https://supreme.justia.com/cases/federal/us/520/681/>, as accessed ), discussion here based on summary at <https://www.oyez.org/cases/1996/95-1853>, as accessed .

There may be no court ruling on point with respect to an alleged criminal offense unless and until the President is arrested, because the case would not legally be a cause or controversy justiciable in a Federal court until such an arrest, although if an alleged offense is under State law then perhaps a State court may be able to rule on point without such an arrest.

Family members are not Constitutionally immune. A daughter of a Democratic President and a daughter of a Republican President were arrested during their fathers’ Presidential terms and presumably their Secret Service protectors were present but the family members were arrested anyway and there does not seem to have been a Constitutional challenge on a familial ground.