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Imagine Trump were to be convicted in a state prosecution and is due to be sent to jail. Before he actually is sent to jail (maybe there is a pending appeal), he becomes president. What powers would he have in practice to avoid going to jail (while he is president)? Are any of these realistic?

  • The president has a huge amount of military and police force under his control (Secret Service, the army, FBI etc.) . Could he simply not allow the state police to come and get him?
  • Would the supreme court be able to rule that a sitting president can't be held in state jail under some legal theory?

You can be sure that Trump's lawyers would come up with something. The question is, what?

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    This question is effectively speculative since it's never happened. However the Constitution grants powers to the President and is the "supreme law of the land," which the states agreed to by ratifying it. It seems obviously untenable that a state could legally impair him from executing those powers by jailing him. Sep 25, 2023 at 12:22
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    @IllusiveBrian That, but the president has no power that is "get out of jail" - it's not an enumerated power of presidency.
    – Trish
    Sep 25, 2023 at 12:24
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    @Trish It's baked into the cake, the states agreed that for example the President would be the commander-in-chief of the country and operate in that role however he sees fit (subject to federal law), a single state can't then prevent him from using whatever facility he wants to do that. I'm only talking about while he's President, assuming there isn't a state law issue once he's no longer President the sentence could be carried out. That said when I have time I could try turning this into an answer, it just seems overly speculative for this SE. Sep 25, 2023 at 12:34
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    @IllusiveBrian Virtually every question on this site is speculative.
    – bdb484
    Sep 25, 2023 at 14:17
  • @bdb484 I guess that's true, but usually there is some existing precedent that can be argued to apply to the hypothetical. Sep 25, 2023 at 14:33

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 on the ground in the circumstance where the President is already incarcerated at the outset of the term of office.

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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  • Could it not be argued that there's already a 'solution' in place for where the president is (for whatever reason) unable to carry out their duties - the VP takes over? Much the same as if the president were to be suddenly hospitalized with some severe condition in between being elected and actually taking up office.
    – brhans
    Sep 25, 2023 at 17:20
  • @brhans The Office of Legal Counsel addressed this at p. 248-49: "the possibility of Vice-Presidential succession 'hardly constitutes an argument in favor of allowing other branches [or states, the argument would go] to take actions that would disable the sitting President.'" Basically, the OLC does not see the existance of a "solution" to be relevant to the more preliminary question about whether the disability can be imposed in the first place.
    – Jen
    Sep 25, 2023 at 17:41

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