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This question is prompted by What happens if the elected presidential candidate is sent to prison before they become president?

While there's no constitutional reason why POTUS can't serve from jail, it's clearly impractical.

Is it possible for a prison sentence to be delayed? So if the President-elect is convicted, their sentence would start as soon as they leave office?

If so, who would make such a decision? Would it have to be the discretion of the sentencing judge? Or could the outgoing POTUS (for a federal crime) or the governor (for state crimes) order this as part of their privilege of commuting sentences?

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  • The president-elect isn't the president so has no immunity from prosecution. But on the day they come to office of POTUS they can (apparently) pardon themselves and be released. Commented Apr 15 at 23:32
  • They can't pardon themselves for state crimes. And it's still considered unsettled whether they can pardon themselves for federal crimes. Legal scholars disagree, so it won't really be known for sure until POTUS tries to do this and it's appealed to SCOTUS.
    – Barmar
    Commented Apr 15 at 23:34
  • And Congress has a say -- I wouldn't be surprised if they consider impeaching himself to be an impeachable offense.
    – Barmar
    Commented Apr 15 at 23:36
  • I did wonder about immunity: is it only for acts committed in their capacity as POTUS? Would they be immune from prosecution if caught shoplifting, while president? Commented Apr 15 at 23:36
  • @WeatherVane We need to wait for the SCOTUS decision in Trump's immunity claim. If they decide he can order SEAL Team 6 to assassinate their political rival, I think he can do practically anything.
    – Barmar
    Commented Apr 15 at 23:39

1 Answer 1

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The Office of Legal Counsel opinion from 2000 concluded that the President has immunity from prosecution and conviction while in office. A subsidiary conclusion was that:

a sitting President may not constitutionally be imprisoned

The concern is that "incarceration would make it physically impossible for the President to carry out his [or her] duties." The memo quotes Joseph Story:

The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office

The memo suggests that the outcome would be "deferred incarceration." It does not discuss the mechanics of how this would play out, so the answers to your subsidiary questions like who would the order come from, when would the sentence start, how would we deal with the circumstance where the president elect is already in custody, etc. are not yet answered.

Note that the OLC opinion is binding on the executive branch of the federal government, not the states. If a state disagreed about the Presidential immunity to incarceration, the disagreement would have to be solved in court.

While there is certainly room to disagree with the OLC opinion, any answer that says the President may be imprisoned needs to directly address and counter the reasoning of the OLC opinion.

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    Never understood why an OLC opinion seems to carry the weight of law. Perhaps it's time for a new OLC opinion. Commented Apr 15 at 13:24
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    @ScottSeidman: Well, the attorney general oversees the department of justice. So even if the OLC opinion is "wrong," the law will likely be executed as though it were right. This is somewhat akin to prosecutorial discretion.
    – Brian
    Commented Apr 15 at 14:29
  • Is there any precedent for deferred incarceration? Obviously not for POTUS, but has incarceration ever been deferred for anyone else?
    – Barmar
    Commented Apr 15 at 14:42

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