26

The US president has the authority to grant a pardon to a person other than himself in respect of a federal crime, even before the person has been indicted. There has also been some discussion over whether he can issue a federal self-pardon. But he does not have the right to issue a pardon for a state crime.

My question is this: what authority do state criminal courts have over the US president? In particular, could they issue an enforceable subpoena against him, order his arrest, try, convict, or jail him?

  • I'm not a lawyer, but your assumption that he has the authority to "grant a pardon to a person other than himself in respect of a federal crime" isn't quite the wording in the constitution. There (Art 2, Sect 2), it says: "he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment". So if judge or the VP is impeached, he can't pardon that person. Whether he can self-pardon has never been tested as far as I know. – Flydog57 Sep 2 at 14:07
35

With regard to subpoenas, the Supreme Court's recent ruling in Trump v. Vance makes it clear that states can issue subpoenas to sitting presidents. (The case in question involved a subpoena to a third party for the president's records, not to the president himself, but the opinion makes it clear that the court would apply the same reasoning in either situation.)

The questions of what actions a state may take to enforce such a subpoena if it is not complied with, or of arrest / indictment / trial by a state, have never arisen and thus have not been resolved by courts.

| improve this answer | |
  • This question and answer remind me of the (likely apocryphal) quote "John Marshall has made his decision, now let him enforce it", except that this would be a state court trying to enforce their decision on the President rather than the federal court enforcing a decision on a state. – Kevin Wells Sep 2 at 21:10
17

The short answer is that this has never been tested so we can't know for sure. The longer answer is that past Presidents have been subpoenaed to testify in court but in those cases were never forced by the court to comply, the most recent being President Clinton who was subpoenaed to testify but struck a deal instead where he testified voluntarily in exchange for withdrawing the subpoena. Without considering the logistical problems of a state trying to effect an arrest on a sitting President, plausibly the President's counsel would file an appeal of the arrest warrant on grounds related to the undue burden of maintaining the safety of the President and effective Constitutional functions of the office while the President is incarcerated, the sovereignty issues that such an arrest poses, and probably other state-federal legal relationship concepts that I'm not familiar with. It is highly likely that the Federal Government wouldn't comply with the warrant until either the appeals process had been exercised up to the US Supreme Court or the US Congress passed a law on the issue.

| improve this answer | |
  • It's likely the framers considered arresting the president impossible outright as they added words to prevent an arrest of a congressman but not the president. Here I do not say illegal. I say impossible. – Joshua Aug 31 at 22:56
  • 2
    @Joshua Do you mean the Speech and Debate clause? I'd argue the opposite, the fact that they included it for the specific situation of a Congressperson in session or going to session and not for anything else would suggest that they did not intend to include a similar protection for any other member of government and that Congresspeople can be arrested any other time. I don't think it says anything about what they thought should happen when a warrant is issued for the President's arrest. – IllusiveBrian Aug 31 at 23:01
  • 2
    Also, I'd imagine they assumed that if there were cause for a warrant for the President's arrest, he would be swiftly removed from office by impeachment or resign. – IllusiveBrian Aug 31 at 23:08
  • Now that I imagine. An arrest warrant for the president issued by a state is unlikely to be well supported because impeachment would come into play first otherwise. – Joshua Aug 31 at 23:11
  • 3
    @Joshua: Making, of course, some optimistic assumptions about Congress's willingness to judge the president's actual guilt or innocence over political considerations. – Nate Eldredge Aug 31 at 23:44
8

Others have addressed the power of a state court to subpoena a President (correctly IMHO), subject to privileges for national security secrets and confidential advice regarding a President's official duties.

Pending actions against the President for defamation outside an official capacity action have not dismissed those cases as a matter of Presidential immunity, nor have civil lawsuits alleging violations of the emoluments clause been dismissed as a matter of Presidential immunity (standing is a trickier issue in those cases). A trial in a civil case (which is not subject to speedy trial mandates) might be deferred until after a President leaves office in many cases without dismissing the case.

I think that there is little doubt that a dissolution of marriage action could proceed while a President was in office (this has happened several times in the cases of state governors who have analogous immunities in these circumstances, and in the case of foreign heads of state which are fully analogous but have different legal systems), or an action to establish paternity for a non-marital child (something that the British P.M. could have faced if there had been a dispute).

I think that there is little doubt that there are no special exemptions apply to a President who is a creditor on account of a personal debt in a probate case, or an heir in a probate case, or in a lawsuit arising from personal co-ownership of real property (e.g. a partition action of a family owned ranch owned by several co-owners).

I think there is a credible argument that the 25th Amendment to the U.S. Constitution pre-empts the authority of someone to bring a civil proceeding against the President to subject the President to a guardianship or conservatorship proceeding on the grounds that he (or she) lacks capacity while serving as President when no acting President is serving in his stead.

The impeachment language of the U.S. Constitution implies that a President may be prosecuted for at least some crimes committed while in office, in Article I, Section 3 of the U.S. Constitution which states that:

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.

This clause sheds light on substantive immunity but not on immunity from prosecution or lack thereof prior to an impeachment conviction.

There are some widely recognizes Presidential immunities from criminal and/or civil liability. Most importantly, there is absolute immunity from civil and criminal liability at any time (in office or afterwards) for the President's conduct of his official discretionary duties in an official capacity (judges, prosecutors and legislators have comparable immunities).

There might be some exceptions to this for violations of federal laws targeted at official capacity conduct (e.g. bribery, theft of government property, Posse Comitatus Act violations, etc.) if the prosecution is for official conduct after being removed from office. But the Supremacy Clause of the U.S. Constitution probably bars criminal prosecutions for the official misconduct of a President while in office under state law.

There is not a widely recognized immunity from state law crimes committed by a President while in official for unofficial conduct.

For example, there is certainly not a consensus, and probably not even a majority of scholarly opinion that would view a President as being immune from a state law arrest or criminal prosecution for killing or grievously assaulting his wife or abusing his child in a hotel room after a campaign rally within the territory in a U.S. state. But procedurally, a President would be entitled to every matter of deference that does not actually abrogate a legal requirement (e.g. leave to testify by telephone, cooperation in scheduling hearings within speedy trial limitations, affordable bond pending trial or personal recognizance bonds).

Some of the opinions of the U.S. Supreme Court in its recent decision this year in Trump v. Vance on Presidential immunity from a criminal subpoena imply that there is not immunity, at least, for prosecution for crimes committed by a President before taking office (necessary to avoid a statute of limitations issue, for example), although there might be strong grounds to defer a trial in most or all cases.

From the official syllabus of the case (citations omitted):

Here, the President claims that the Supremacy Clause gives a sitting President absolute immunity from state criminal subpoenas because compliancemwith such subpoenas would categorically impair the performance of his Article II functions. The Solicitor General, arguing on behalf of the United States, claims that a state grand jury subpoena for a sitting President’s personal records must, at the very least, meet a heightened standard of need.

The President’s unique duties as head of the Executive Branch come with protections that safeguard his ability to perform his vital functions. The Constitution also guarantees “the entire independence of the General Government from any control by the respective States.” Farmers and Mechanics Sav. Bank of Minneapolis v. Minnesota. Marshall’s ruling in Burr, entrenched by 200 years of practice and this Court’s decision in Nixon, confirms that federal criminal subpoenas do not “rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions.” Clinton v. Jones. But the President claims that state criminal subpoenas necessarily pose a unique threat of impairment and thus require absolute immunity. His categorical argument focuses on three burdens: diversion, stigma, and harassment.

The President contends that complying with state criminal subpoenas would necessarily distract the Chief Executive from his duties. He grounds that concern on Nixon v. Fitzgerald, which recognized a President’s “absolute immunity from damages liability predicated on his official acts.” But, contrary to the President’s suggestion, that case did not hold that distraction was sufficient to confer absolute immunity. Indeed, the Court expressly rejected immunity based on distraction alone 15 years later in Clinton v. Jones, when President Clinton sought absolute immunity from civil liability for private acts. As the Court explained, Fitzgerald’s “dominant concern” was not mere distraction but the distortion of the Executive’s “decisionmaking process.” The prospect that a President may become “preoccupied by pending litigation” did not ordinarily implicate constitutional concerns. Two centuries of experience likewise confirm that a properly tailored criminal subpoena will not normally hamper the performance of a President’s constitutional duties.

The President claims this case is different. He believes that he is under investigation and argues that the toll will necessarily be heavier in that circumstance. But the President is not seeking immunity from the diversion occasioned by the prospect of future criminal liability. He concedes that he may be investigated while in office. His objection is instead limited to the additional distraction caused by the subpoena itself. That argument, however, runs up against the 200 years of precedent establishing that Presidents, and their official communications, are subject to judicial process, see Burr, even when the President is under investigation, see Nixon, . . .

Finally, the President argues that subjecting Presidents to state criminal subpoenas will make them “easily identifiable target[s]” for harassment. Fitzgerald. The Court rejected a nearly identical argument in Clinton, concluding that the risk posed by harassing civil litigation was not “serious” because federal courts have the tools to deter and dismiss vexatious lawsuits.Harassing state criminal subpoenas could, under certain circumstances, threaten the independence or effectiveness of the Executive. But here again the law already seeks to protect against such abuse. First, grand juries are prohibited from engaging in “arbitrary fishing expeditions” or initiating investigations “out of malice or an intent to harass,” United States v. R. Enterprises, Inc., and federal courts may intervene in state proceedings that are motivated by or conducted in bad faith. Second, because the Supremacy Clause prohibits state judges and prosecutors from interfering with a President’s official duties, any effort to manipulate a President’s policy decisions or to retaliate against a President for official acts through issuance of a subpoena would be an unconstitutional attempt to “influence” a superior sovereign “exempt” from such obstacles, see McCulloch v. Maryland. And federal law allows a President to challenge any such allegedly unconstitutional influence in a federal forum.

A state grand jury subpoena seeking a President’s private papers need not satisfy a heightened need standard, for three reasons. First, although a President cannot be treated as an “ordinary individual” when executive communications are sought, Burr teaches that, with regard to private papers, a President stands in “nearly the same situation with any other individual.” Second, there has been no showing here that heightened protection against state subpoenas is necessary for the Executive to fulfill his Article II functions. Finally, absent a need to protect the Executive, the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence. Rejecting a heightened need standard does not leave Presidents without recourse. A President may avail himself of the same protections available to every other citizen, including the right to challenge the subpoena on any grounds permitted by state law, which usually include bad faith and undue burden or breadth. When the President invokes such protections, “[t]he high respect that is owed to the office of the Chief Executive . . . should inform the conduct of the entire proceeding, including the timing and scope of discovery.” Clinton. In addition, a President can raise subpoena-specific constitutional challenges in either a state or a federal forum. As noted above, he can challenge the subpoena as an attempt to influence the performance of his official duties, in violation of the Supremacy Clause. And he can argue that compliance with a particular subpoena would impede his constitutional duties.

| improve this answer | |

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.