Can a sitting U.S. president be imprisoned without impeachment? A sitting U.S. president can not be indicted for federal crimes as a matter of constitutional separation of powers and DOJ policy, among other reasons. The president's constitutional protections and powers (e.g., pardon power, etc.) do not extend to the state level. For example, POTUS can pardon people (including himself) on federal crimes. But can not pardon people for state crimes. Now imagine a scenario where a POTUS, while sitting in office, is indicted by a particular state Attorney General for a crime, say murder, under state statutes. In that scenario, can POTUS be tried, convicted and jailed for those crimes without being impeached? As a practical matter, could it actually happen? How would it actually play out given the supremacy clause and other practical considerations of jailing the chief federal executive? Edit I do not think this question is a duplicate of Can a sitting president of the United States be indicted by one of the states?. That question is limited to the issue of indictment only. This question assumes indictment powers and deals with trial, conviction and, most notably, imprisonment. Given the existing answer to that question, these differences seem relevant and could lead to different or more qualifications on the existing answer. And, finally and perhaps more importantly, this question also seeks to extract the details of the logistics of how an arrest and/or jailing and imprisonment might or might not be feasible and/or actually occur.
Yes. In 1872 President Grant was stopped for speeding (on horseback, mind you). The officer, observing that he had stopped the President of the United States, initially let him go with nothing but a verbal warning. Later the same day, the same officer stopped Grant again speeding in the same place. The officer then informed Grant that he would have to be taken in, to which Grant gave a reply encouraging the officer to do his duty. Grant was then taken to the police station where he was charged with speeding, and held until he paid a $20 fine, at which point he was released. In summary, POTUS was: Charged with an offence Deprived of his liberty for committing said offence Held until he served his punishment (paying $20) ... all without impeachment. Now, this was a long time ago. I think that today, this is unlikely, since Secret Service would (legal or not) shield the President from arrests (national security reasons). However if a state level authority did manage to arrest the President for a crime and refused to let him go, then the Vice President and cabinet would invoke the 25th Amendment (on the grounds that the President is unable to discharge his duties due to imprisonment), so that the imprisoned person would now be a former president.
The 5th amendment protects you from self-incrimination. If by possessing a firearm you are in violation of the law you cannot be compelled by law to reveal this information. If the police discover you have a gun in violation of the law you can be arrested and prosecuted for that offense. They cannot additionally prosecute you for not telling them about a gun. I thought there was a supreme court case about this specific situation, but the closest I can find for now is Haynes v. United States. The 7-1 majority held that people prohibited from possessing firearms cannot be compelled to register their firearms that they are possessing illegally. They are stopped by the police and asked this question. They answer truthfully. Then they can be arrested and prosecuted for the illegal possession of the gun. How does this square with the right not to self-incriminate? Or is asking the question considered to be a search? Police can generally ask whatever they want. If you choose to waive your 5th amendment rights, that's your mistake. Can the state prosecute this person for carrying the illegal weapon? The state can generally prosecute crimes it knows about. So yes, in this case they can. Suppose that next to the weapon a stash of illegal drugs is discovered, which was only found due to the action taken to secure the weapon. Can the state prosecute for that? The state can generally prosecute additional crimes it uncovers during investigations or other lawful actions. So yes, this can be prosecuted.
Yes. The absence of immunity for a U.S. President's unofficial acts was established both in the Nixon Administration and later in the Clinton Administration. In practice, a prosecutor would be loath to file such charges absent very, very solid probable cause, and a court would often be very deferential in accommodating the President's schedule and, for example, in allowing appearances by telephone when allowed by law, or by electing not to seize the President's passport as a bail condition to be free pending trial, as would be common for someone facing felony charges pending trial. But, ultimately, the President does not have the right to either defer the charges until the completion of his term, or to any immunity from charges for his or her unofficial acts.
The president has the power to issue an executive order, which must either be supported by the Constitution or by some act of Congress. If a president were to apparently overstep his authority, someone would have to sue him and the Supreme Court would decide whether he did have that authority. For example, Truman thought that he had the power to nationalize steel mills, but Youngstown Sheet &amp; Tube Co. v. Sawyer, 343 U.S. 579 determined otherwise. There have been few cases where courts have overturned an executive order. Matters of immigration are not outside of the executive power of POTUS. Obama issued a dozen orders aimed at stopping deportation of illegal immigrants. The matter ended up in SCOTUS, which tersely declined to overturn the lower court ruling (that he didn't have that power). Congress can restate the law to clearly take away a power (assuming it is not a constitutional power, and immigration is not a constitutional power / duty). In this sense, the president can "write laws" the same way that various federal regulatory agencies can "write laws", or how courts can "write laws". The subject matter of such laws is limited, so while an act of Congress is limited only by the Constitution, executive-branch law has further underlying statutory limits. Only Congress can unilaterally pass a statute: the power to write law is available to pretty much all branches of government. As for immigration statutes, 8 USC 1182 provides the general hook for such a presidential decree – the code would require major rewriting to clearly take away that power. It has to be remembered that Congress creates laws and cannot enforce them: the executive branch enforces them. Any law whatsoever restricting immigration therefore involves the president.
An oath of office cannot be legally enforced through the courts, other than to demand that officials take it in order to take office, and to bar people who have taken it and then engaged in treason or sedition from holding public office in any federal, state, or local office, military or civilian, in the United States. This is something which is required of all federal and state and local public officials under the U.S. Constitution, which states in the third paragraph of Article VI: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. The U.S. President's parallel oath of office is found in the last paragraph of Section 1 of Article II of the U.S. Constitution. It states: Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: — &quot;I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.&quot; But, while taking the oath is required, it is also the case that: An oath is not justiciable. The FBI cannot investigate adherence to oaths because they are not enforceable as codified law. A prosecutor cannot establish that an oath has been broken by proving certain legal elements beyond a reasonable doubt, and a judge cannot adjudicate it. There is one exception to this rule, however. Section 3 of the 14th Amendment to the U.S. Constitution states: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. So, an oath of office does impose a justiciable duty to not engage in insurrection or rebellion against the United States, or give aid or comfort to the enemies of the United States, upon pain of not being able to hold any state or federal, military or civilian public office without a two-third majority waiver from Congress (in addition to any other consequences that may flow from this conduct without regard to having taken an oath). But, this is a very slight slap on the wrist indeed for committing treason or engaging in sedition (which are criminally punishable by decades in prison or death) after having sworn this oath. Justice Joseph Story noted in his &quot;A Familiar Exposition of the Constitution of the United States&quot; (1842) that: A President, who shall dare to violate the obligations of his solemn oath or affirmation of office, may escape human censure, nay, may even receive applause from the giddy multitude. But he will be compelled to learn, that there is a watchful Providence, that cannot be deceived; and a righteous Being, the searcher of all hearts, who will render unto all men according to their deserts. Considerations of this sort will necessarily make a conscientious man more scrupulous in the discharge of his duty; and will even make a man of looser principles pause, when he is about to enter upon a deliberate violation of his official oath. The purpose of an oath of office is simply to deny public offices to people who are not willing to publicly state that the legal system in which the people taking them will operate is legitimate. An oath to support the constitution is the modern equivalent of the feudal European ritual of &quot;bending the knee&quot; to one's legitimate feudal superior. This ritual was highlighted, for example, in the Game of Thrones books by R. R. Martin, which is based loosely on the fights over legitimacy in 15th century England's &quot;War of the Roses&quot;. Another legacy of this historical tradition is the duty of someone in military service to salute his or her superior officer. As a historical note, these seemingly toothless rituals have, historically, been surprisingly effective a screening out hard core extremist leaders trying to bring down a government based upon claims that the whole system is illegitimate when new regimes are established, and following civil wars and insurgencies. Many regimes, democratic and non-democratic, in Western political history, have imposed similar requirements. When they have done so, this has seriously influenced the political tactics used by factions that deny the legitimacy of the state and its incumbent leaders. Simply taking the oath undermines one's credibility as an insurgent leader, even if one does so in bad faith. In the United States, oaths of office were also key preconditions to the post-conflict settlements if the Whiskey Rebellion, the Civil War, and some of the lesser known episodes of a century of Indian Wars. As a more recent example, the requirement of an oath of office has materially influenced the 20th and 21st century political tactics of Sinn Féin, a political movement in Ireland, seeking to make the U.K. political subdivision known as Northern Ireland, which it deems illegitimate, a part of the Republic of Ireland. Notably, the U.S. Supreme Court in the case Powell v. McCormack, 395 U.S. 486 (1969), distinguished between a Congressional determination that someone has not satisfied the constitutionally established requirements to have an oath of office administered to them after they have been elected, which can be made by majority vote, and a Congressional determination that a member of Congress should be expelled by a two-thirds majority vote of the house of Congress to which the member of Congress has been elected. A Congressional vote to expel a member of Congress is a non-justiciable question that is not tied to the content of the member's oath of office. Similarly, judicial and executive branch officials in the federal government may be impeached by Congress, and removed from office through that process, only for &quot;high crimes and misdemeanors&quot; and not merely for otherwise failing to live up to their oath of office in a non-criminal manner (although what constitutes &quot;high crimes and misdemeanors&quot; is also a non-justiciable political question). Some legal authorities, however, have held that in some contexts, the oath of office does reflect an intent to empower executive branch officials to refuse to enforce what the President believes to be unconstitutional legislation, when its constitutionality has not yet been definitively adjudicated yet. But, courts have also held, for example, that a member of the U.S. military does not have standing to bring a suit claiming that military action in which he is involved was unconstitutionally authorized. This decision was reached on the grounds that the claim that the service member was forced to violate that service member's oath of office does not constitute a justiciable &quot;injury in fact&quot; to that member for standing to sue purposes. Smith v. Obama, No. 16-843, 2016 WL 6839357 (D.D.C. Nov. 21, 2016) at page 10 (as discussed here).
How would this scenario play out in the legal system? Prosecutor brings charges against EQM or tries to use that conviction to enhance a subsequent conviction. Defendant EQM raises the pardon as a defense. Prosecutor responds that the pardon was intended to cover EQM Prime, not EQM. The Court holds an evidentiary hearing to determine whether the President intended to pardon EQM Prime or EQM. The Court decides who the President intended to pardon based upon the evidence presented at the hearing, and rules accordingly. The burdens of proof are tricky. Usually affirmative defenses have a preponderance of the evidence burden on the proponent of the defense, but sometimes the defense must be disproved beyond a reasonable doubt. I don't know that part of the law well enough to know without lots of research and the outcome might not be uniform across the U.S. To my knowledge, there has never been a case that got this far in which the true identity of the beneficiary of the pardon was ambiguous. It is possible, but a vanishingly rare possibility. Almost always, someone gets a pardon by asking for it and determining whether EQM or EQM Prime asked resolves it, or a reference to the crime resolves it. If the Court concludes that both asked the same President to be pardoned for the same crime (e.g. if the same crime was committed jointly by father and by son who is named after father and doesn't use Jr. day to day) and the Court concludes that the President was probably confused and didn't realize that there were two requests from different people and not one, the judge would probably give them the benefit of the doubt and treat both as pardoned as that would still reflect the President's intent.
New Jersey, Pennsylvania, Rhode Island and Virginia still allow private prosecutions that can result in incarceration. See also a state by state summary here. A bar on conflicts of interest (e.g. having the same lawyer pursue a private prosecution and a civil case against the same defendant) greatly limit the practice in Virginia (see also here). There is an argument that this limitation has federal constitutional force. But see, Cantrell v. Commonwealth, 229 Va. 387 (1985) (analysed here). Is there anyone currently in jail/prison as a result of a private prosecution in one of the states which allow them? If not, when was the last time this occurred. They are very rare, and often limited to misdemeanors. I suspect that there is currently someone in incarcerated on the basis of one, but it isn't easy to determine as there are no one who maintains statistics regarding this. Convictions in private prosecutions have resulted in appellate decisions as recently as 2020 in Virginia. A private prosecution resulting in a conviction with a one-year suspended sentence and one year of probation was affirmed on appeal in 2001 in Rhode Island. In many Rhode Island cases, this involves prosecutions by police officers (see also here noting that this is also common in &quot;New Hampshire, New Mexico, South Carolina, and Virginia, where police officers can act as prosecutors throughout the entire misdemeanor process—from a defendant’s first appearance through a plea or trial&quot;). A (pay per view) 2011 law review article reviews the practice of victim prosecutions in New Hampshire (where incarceration may not be sought), New Jersey, and Rhode Island.
First of all, there is a distinction between being impeached and being convicted. Trump was impeached when the House voted to adopt an Article of Impeachment. That happened while he was still in office. He will not be convicted until the Senate votes to convict him by a 2/3rds vote, if it ever does. In the case of Nixon, the House had not yet voted to adopt Articles of Impeachment when he resigned. They had been introduced and debated, but not yet finally approved. Moreover, we don't know what would have happened if the House had proceeded to pass such articles after Nixon had resigned. The House of that time did not choose to proceed. There was no court ruling saying that they could not do so. There are some precedents saying that the Senate can proceed with a trial after an official resigns or is expelled after impeachment. None of these are at all recent, none are clear cut, none involved an official whose term had ended, none involved a President, and none that I am aware of led to a conviction. And this issue has never been tested in a Federal court. Specifically, there is the case of William Belknap. Belknap was Secretary of War under US President Grant. He was accused of improperly profiting from military contracts. The House started impeachment proceedings. Grant interviewed Belknap, who confessed to Grant and resigned on the spot. The house none the less pass five articles of impeachment after Belknap resigned. When the Senate took up the case, there was a motion to dismiss on the ground that the Senate did not have jurisdiction because of Belknap's resignation. By a vote of 37–29 the Senate held that it had jurisdiction and that a trial should proceed. The vote to convict Belknap was 35 for conviction, 25 against it. This was five votes short of the required 2/3rds to convict. Most of the Senators voting against conviction were on record as doing so because they did not agree that the Senate had jurisdiction. Thus a majority vote of the Senate held in that case that such a trial was proper, but less than 2/3rds. (Most also indicted that they thought the charges true.) There was also the case of William Blount. Blount, a Senator, was impeached by the House in 1798. (In fact this was the first impeachment ever under the US Constitution.) The Senate voted to expel him. When the articles of impeachment came up in 1799, the Senate voted to dismiss the impeachment, on the ground that the impeachment process did not extend to members of the Senate, but not on the grounds that the expulsion rendered the proceedings moot. Should Trump be convicted by the Senate (which now seems unlikely) he might bring a court case claiming that such a conviction was unconstitutional. There is no knowing how a court would handle such a case. And if Trump is not convicted, no such case will be brought this time, either. This Washington Post opinion piece by two Constitutional scholars claims that such a trial would be constitutionally proper. It also claims that it would not have been proper had the vote to adopt articles of impeachment occurred after Trump had left office. Others have taken different positions. Whether a Senate trial of an impeachment is constitutional after the person impeached has left office is a hotly debated question at the moment. There has never been a court ruling on the point, and neither of the precedents is of a situation quite matching the current impeachment of Trump. No court has ruled on the matter. The Senate did not vote for a motion to dismiss the impeachment on those grounds, although if every senator who voted for the motion voted to acquit, Trump would not be convicted. From the comments I wish that any downvoters would leave a comment indicting what thy think is wring with this answer. In the absence of a comment, I cannot improve the answer, others cannot use the reasons to write better answers, and readers have no idea why someone objects to the answer. Such a downvote seems pointless. I have updated this answer with a discussion of the Blount and Belknap precedents. In neither case did the Senate actually vote to dismiss the articles because the accused was no longer in office, although that seems to be a major reason why 25 senators voted against convicting Belknap.