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Recently, the FBI decided not to recommend prosecution of Hillary Clinton, and as of 12:00 noon EST Clinton is projected to have lost her bid for POTUS. However - if the FBI had recommended prosecution and Hillary had won the election, what would the result have been?

I don't know how the US legal system works, but if it would have taken time for her to be convicted, she could have been sworn in as POTUS before being imprisoned, if guilty.

Could she have been arrested after she was sworn in? Or does the POTUS have immunity?

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  • The trial referenced appears to be a civil trial. These typically do not result in jail time. That does not address the substance of your question but it makes the example possibly unhelpful. A better example would be, if the FBI had recommended prosecution of Clinton and she had won, what would happen?
    – Patrick87
    Commented Nov 9, 2016 at 16:33
  • @Patrick87 Okay, sure. Feel free to edit it.
    – Tim
    Commented Nov 9, 2016 at 16:34
  • Edits made, please take a look at my changes and see whether I have maintained the essence of your question while only changing the specific (hypothetical) example given to motivate it.
    – Patrick87
    Commented Nov 9, 2016 at 16:40
  • @Patrick87 Now I am curious about civil trials: does the President, as the commander in chief of the military, enjoy the deferment of civil lawsuits until the end of their service per the Servicemembers Civil Relief Act?
    – user662852
    Commented Nov 9, 2016 at 18:54
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    @user662852 I think that is a worthy question in its own right. This StackExchange would seem an appropriate place to ask it.
    – Patrick87
    Commented Nov 9, 2016 at 19:35

1 Answer 1

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There is no definitive answer, which can only be determined by SCOTUS if faced with a case. DOJ has opined twice that "the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions". The Impeachment Clause (art.I, §3, cl.7) says

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indict­ment, Trial, Judgment and Punishment, according to Law

The exegesis of this clause is that this means a sitting president cannot first be prosecuted for a crime, but must first be removed from office. The counter-argument is that "nevertheless" indicates that this clause only states that a president can be removed and then prosecuted, and that removal does not preclude further action. In other words, the law has yet to be determined on this matter.

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  • But, before removal, couldn't they give themselves a Ford-Nixon style "pardon of all future charges relating to ______" and then immediately resign?
    – Aidan
    Commented Nov 29, 2016 at 14:42

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