With two U.S. presidents now facing special counsel investigations and one facing legal jeopardy on a host of other matters, questions over how and when a president might face legal action are swirling. Attorney General Merrick Garland recently appointed a special counsel to investigate President Joseph Biden and his administration’s handling of classified documents, months after beginning an investigation into President Donald Trump’s storage of classified files at his Florida home. Trump is also facing criminal investigations and civil litigation involving his actions on Jan. 6, his tax and business activities, alleged election interference, and more.
Lacking clear constitutional guidance, ideas about presidential immunity have evolved from the nation’s founding to today, and in some cases remain unsettled, says Saikrishna B. Prakash, a University of Virginia School of Law professor and expert on presidential power. Prakash wrote a paper on the subject, “Prosecuting and Punishing Our Presidents,” published in the Texas Law Review in 2021. In the article, he argues that while the Constitution confers no immunity from prosecution and civil suits upon presidents and former presidents, Congress might bestow such privileges and immunities.
Prakash, the James Monroe Distinguished Professor of Law and the Albert Clark Tate, Jr., Professor of Law, is a senior fellow of UVA’s Miller Center of Public Affairs. He is the author of the books “The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers” and “Imperial from the Beginning: The Constitution of the Original Executive.” He recently discussed his research and answered questions about current and past legal challenges facing U.S. presidents.
The Supreme Court has never held that a president is immune from criminal prosecution. It’s the Department of Justice that says that. And because the Department of Justice controls all the federal prosecutors, it means that no federal prosecutor, including the new special counsel investigating Biden’s offsite storage of classified documents, can prosecute a sitting president. The Office of Legal Counsel in the Department of Justice thinks there’s such a rule in the Constitution because it believes a criminal indictment and prosecution — and of course, punishment — would effectively incapacitate the presidency. And they further believe it’s unconstitutional to incapacitate the sitting president, and that the only means by which you can legally incapacitate the president are impeachment, which removes the president from office, or the 25th Amendment, which sidelines an incapacitated president.
The OLC’s claim is grounded on structural intuitions of the same sort that led the Supreme Court to conclude that the president couldn’t be sued civilly for his official acts. In Nixon v. Fitzgerald, the court said that private lawsuits grounded on the president’s official acts would lead to distraction and distortion — the president would be distracted from his official duties and he might change his official policies in the wake of a civil suit. The OLC believes that the same sort of thing is going to happen, except more so, in the context of criminal prosecution. The president is going to be distracted, not be able to function, and he might change various policies in order to try to curry favor with the public in some way.
There’s a quote from Justice Joseph Story in his 1833 “Commentaries on the Constitution” where he says the president’s not subject to civil arrest. Civil arrest is actually an outdated concept that no longer exists, but it allowed private parties to arrest people. That language was taken up by the Office of Legal Counsel in the 1970s in the context of an OLC opinion discussing whether Vice President Spiro Agnew could be prosecuted. The OLC said the vice president could be prosecuted while in office, but they said the president couldn’t, and they quoted this language and kind of stripped away the “civil” arrest idea and just made it an arrest. And if you can’t be arrested, they said, you couldn’t be indicted, prosecuted, or punished. They said that in the 1970s, and they’ve said it multiple times since. It remains official Justice Department policy that presidents can’t be prosecuted and therefore no U.S. attorney will ever indict or prosecute a sitting president.
The Constitution grants some privileges and immunities to the Congress. Members of Congress can’t be arrested on the way to going to Congress. This was a rule designed to prevent the obstruction of congressional meetings by arrests of members of Congress. And members of Congress can’t be called into question for anything they say on the floor, which is a form of testimonial privilege. You can say whatever you want to on the floor, including something defamatory, and no one can sue you for it. So these are privileges and immunities of members of Congress.
My paper argues that the president has one sort of privilege, which is a guaranteed salary, and then it looks at other constitutions, particularly state constitutions, where other executives actually had specific privileges and immunities written into the constitution. Certain executives couldn’t be convicted while they were governors — they had to wait until after they left office. Of course, the British crown had various privileges or immunities. The presidency doesn’t have any of these immunities expressly in the Constitution. It has the salary privilege and nothing else, and if the founders wanted to grant privileges and immunities to the president, they would’ve done so. In the Constitutional Convention, Madison actually said perhaps we ought to consider what privileges and immunities the president ought to have. And then nothing comes of that suggestion.
There’s a debate in the first Congress about whether the president has any immunities and there are people who say he’s not subject to judicial process. He can’t be subpoenaed, he can’t be prosecuted, and he can’t be civilly sued. But other people say that’s silly. They insist he’s not a sacred creature or above the ordinary legal process. The paper points out that Washington was involved in many legal disputes in his private capacity, and he never suggested that while he could sue other people, they couldn’t sue him. In fact, there’s an order from a state court in Virginia while he’s president, enjoining him to deposit some assets with the court because he was an executor of an estate, and he wanted it settled.
There’s an interesting anecdote where Ulysses Grant is frolicking on his horse, speeding up and down the streets of Washington. And he gets stopped by a cop — a Black police officer — who says, you can’t do this, it’s illegal. And he gives him a warning, but the president does it again the next day, and the police officer actually takes Grant down to the police station, which is a form of arrest. There’s a scheduled trial date. Grant doesn’t show up and doesn’t contest that he was doing this, and he ends up paying a fine. So I argue that Grant evidently didn’t think that he was immune from arrest or criminal prosecution.
There are some structural problems with saying you can’t arrest the president, because it would imply the president can do anything he wants until he’s impeached and removed. Well, what if he arrests members of Congress, and he prevents them from meeting? Then they can’t impeach and remove him. If it’s true the president can’t be arrested and stopped from various nefarious deeds, then it’s also true that he can’t be stopped from kidnapping all members of Congress and preventing them from doing the one thing that supposedly they can do, which is impeach him, or the one thing that makes him responsible, which is impeachment.
My article says there are no privileges and immunities for the president other than the salary. But if you think there ought to be, Congress can provide them. The solution isn’t to infer some sort of privilege or immunity in the Constitution for the presidency. The solution is to just have Congress, by statute, enact various privileges and immunities. So if they think the president shouldn’t be prosecuted, they can say that. If they think the president shouldn’t be sued civilly, they can say that. The mistake is to think that if something is useful or a requisite, it has to be in the Constitution. The better approach is to recognize that the Constitution gives Congress the tools to solve these perceived problems. So the paper isn’t arguing the president shouldn’t have any immunity. It’s just saying the Constitution never grants it.
The Supreme Court has said that the president can be sued for his private acts, and I think most people believe that encompasses his acts prior to president but also his acts while he’s president. So the theory is that the president does have some private acts — not everything the president does while he’s in the office is an official act. At the same time, the court has said the president enjoys immunity from civil damage actions for all his official acts and it extends to the outer rim of his official acts. So there’s a question about whether Trump’s actions on Jan. 6 and beyond are official acts that extended the outer rim of the president’s powers and responsibilities such that the Justice Department should defend him in these suits and should claim official immunity on his behalf.
I don’t think the OLC has categorically ruled out official acts as the basis for a criminal prosecution. So the president not paying taxes or something, now that he’s no longer president, of course they can go after him and prosecute him. If you have a question about whether the president’s official acts constitute a crime, there’ll be a question about whether the statute should be read to cover the president’s official acts. And then even if they are read to cover the president’s official acts, there’ll be a question of whether it’s constitutional for Congress to regulate the president’s official or constitutional acts. So there are all kinds of questions that you have to think about in deciding whether or not some generic criminal statute should be applied to the president’s constitutional acts, by which I mean acts authorized by the Constitution.
Jefferson was sued after he left office for his official acts as president by Edward Livingston. Chief Justice John Marshall wrote the opinion dismissing the case. And then Clinton, of course, was sued by Paula Jones while he was president. Many of Trump’s suits were there before he became president, and then more were brought against him while he was president. I think the number of suits against him were unprecedented for a president, but Trump’s not the first president to be sued in his private capacity and he won’t be the last.
In Clinton v. Jones, the Supreme Court made it clear these suits grounded on private actions could continue and that there was no bar against them or constitutional requirement that they be deferred. Clinton didn’t say you can’t sue me in my private capacity. He just said it should wait until I leave office because I have to do the people’s business and this suit distracts me. And the court said we don’t think it’s going to distract you very much, and we don’t think you have this temporary immunity, so we’re going to allow the case to continue. And of course, it did distract the president quite a bit, but that’s because he perjured himself in that case. That led to the Ken Starr investigation, where he had to testify before a grand jury. And I think Starr believed he lied to the grand jury as well.
For everyone other than the president, everybody agrees that of course you can prosecute them while they’re in office — there’s no bar in the Constitution’s impeachment clause or elsewhere to prosecuting a sitting secretary of defense or a judge, or a general, or an ambassador. The impeachment provisions in the Constitution aren’t read to bar prosecutions of these officials while they’re still in office. But the OLC believes that the president is different, and that the impeachment provisions somehow signal in the case of the presidency that you cannot prosecute a sitting president. And of course the problem with that is there’s only one set of impeachment provisions, and they don’t say that we treat the president any differently. They don’t say that other people can be prosecuted while they’re in office but impeachment is the only means of accountability for the presidency. So they’re reading a set of provisions in one way for everybody else and another way for the president.
There will always be people who will suspect some partisanship lurking behind the decision, but there may be other people who are persuadable. Yale Law School professor Ian Ayres and I came up with this idea that before prosecuting a former president, the U.S. attorney or the special counsel ought to impanel what we call a “prosecutorial jury” consisting of former U.S. attorneys appointed by Republicans and Democratic presidents — an even panel of, hypothetically, 20 prosecutors — 10 appointed by Republican presidents, 10 by Democratic presidents. And if 14 or more believe that the former president has committed an indictable offense, only then should the special counsel seek an indictment from a regular grand jury.
If four or more members of the other party think the former president has done something illegal, that lends credence to the view that it’s not a partisan witch hunt. And of course, the reform we’re talking about would apply to any former president, meaning it would apply to former President Biden once he leaves office. The fear is that grand juries tend to be led around by the nose by prosecutors, but this prosecutorial jury is composed of expert prosecutors and they’re not going to be misled or unduly influenced. They’re going to draw their own independent judgments to come to a legal conclusion.
As a matter of practice, not as a matter of logic, it becomes harder for the Justice Department to go after Trump because it will seem more plausible to more people that they have “done the same thing” even though there are lots of differences between the cases. So the Justice Department has to think about that in deciding whether to indict and prosecute Trump. Hillary Clinton was not prosecuted despite retaining government documents, including classified government documents, so it makes it more difficult to prosecute Trump — not as a legal matter, but as a practical matter. In President Biden’s case, he’s not going to be prosecuted while he’s president. As I mentioned, the Justice Department has a rule that you can’t prosecute a sitting president. However, you can investigate a sitting president and you can gather evidence of a crime.
From time to time, Congress turns over evidence of a crime to the executive branch and recommends a prosecution. I don’t know if it will actually lead to any prosecution. As far as I know, there’s no timeline for acting on it, and there’s no requirement that you do anything with it. The executive branch is independently investigating former President Trump. Were they investigating the crimes that the Jan. 6 committee believed that President Trump committed? I would assume so. I would assume they’re investigating those and others as well. But really, we don’t know. There are facts that in dispute, and then there are questions of law that are in dispute. It’s quite possible that someone could say, I agree with all your facts, but I don’t think this statute covers these facts, so we’re not going to bring these charges, but we’ll bring these other charges. Any of those things are possible. But there’s no requirement that the DOJ prosecute someone because the House or the Jan. 6 committee believes the president committed a crime.
The last several elections have been influenced by investigations and prosecutions in the Justice Department: Hillary Clinton is damaged by these investigations, Donald Trump is damaged by a Robert Mueller investigation and Trump and Biden are hobbled by separate special counsel investigations. One big-picture issue is, are all these people ethically compromised? Are they just all bad actors? Maybe the answer is yes. Whether or not it’s true, the prosecutors within the Justice Department are playing an outsized role in deciding who’s going to become president because they are repeatedly deciding whether these people have committed a crime, which has obvious electoral consequences. It’s a dangerous thing for the incumbent or for anybody to be the target of the special counsel because you don’t know where it’s going to end up. It’s different being investigated by a U.S. attorney’s office versus being investigated by a special counsel whose entire energy is focused on you, and they have five, 10, 20, 30 people working on it.
Since Trump took office in January 2017, his administration worked aggressively to turn back the clock on our nation’s civil and human rights progress. Here’s how. On January 27, Trump signed an executive order – the first version of his Muslim ban – that discriminated against Muslims and banned refugees. On January 31, under new Chairman Ajit Pai’s leadership, the Federal Communications Commission refused to defend critical components of its prison phone rate rules in federal court – rules that were ultimately struck down in June. On February 3, Trump signed an executive order outlining principles for regulating the U.S. financial system and calling for a 120-day review of existing laws, like the Dodd-Frank Wall Street Reform and Consumer Protection Act. The order was viewed as Trump’s opening attack on consumer protection laws. On February 3, the FCC rescinded its 2014 Joint Sales Agreement (JSA) guidance, which had led to the only increase in television diversity in recent years. On February 3, FCC Chairman Pai revoked the Lifeline Broadband Provider (LBP) designations for nine broadband service providers, reducing the number of providers offering broadband and thus decreasing the competitive forces available to drive down prices. On February 7, the White House issued a Statement of Administration Policy supporting H.J. Res. 57, a resolution under the Congressional Review Act to overturn a Department of Education accountability rule that clarifies states’ obligations under the Every Student Succeeds Act. The Leadership Conference on Civil and Human Rights opposes this resolution. On February 9, Trump signed three executive orders “to fight crime, gangs, and drugs; restore law and order; and support the dedicated men and women of law enforcement.” The orders, though vague, were viewed suspiciously by civil rights organizations. On February 10, Sens. Patty Murray and Maria Cantwell of Washington wrote to Education Secretary Betsy DeVos after the centralized resource website for the Individuals with Disabilities Education Act (IDEA) became inaccessible to the public for more than a week. On February 17, DeVos issued a statement blaming the previous administration for neglecting the site. On February 21, the Department of Homeland Security issued a memo updating immigration enforcement guidance, massively expanding the number of people subject to detention and deportation. The guidance drastically increased the use of expedited removal and essentially eliminated the priorities for deportation. On February 22, the Justice Department’s Civil Rights Division and the Department of Education’s Office for Civil Rights jointly rescinded Title IX guidance clarifying protections under the law for transgender students. On February 23, Attorney General Sessions withdrew an earlier Justice Department memo that set a goal of reducing and ultimately ending the department’s use of private prisons. On February 27, the Department of Justice dropped the federal government’s longstanding position that a Texas voter ID law under legal challenge was intentionally racially discriminatory, despite having successfully advanced that argument in multiple federal courts. The district court subsequently rejected the position of the Sessions Justice Department and concluded the law was passed with discriminatory intent. On March 6, the Department of Justice withdrew its motion for a preliminary injunction against North Carolina’s anti-transgender HB 2 law. On March 6, Trump signed a revised executive order restricting travel to the United States by citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen and drastically cutting back refugee admissions. On March 6, a week after Trump called on lawmakers to repeal the Affordable Care Act during his address to Congress, House Republicans released a proposal to replace the ACA with a law that would end the Medicaid program as we know it and defund Planned Parenthood. On March 6, the Department of Health and Human Services proposed ending the collection of data on LGBTQ individuals with disabilities, removing questions on LGBTQ demographics from the Centers for Independent Living Annual Program Performance Report survey. On March 10, the Department of Housing and Urban Development withdrew
