In the US, can a state court issue a subpoena against, arrest, try, convict, or jail the US president? 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?
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.
To start, for this hypothetical to happen, a whole bunch of decisions contrary to sanity have to happen: The Vice President and President Pro Tempore do not invoke the 25th Amendment to temporarily remove the President from office Congress does not issue Articles of Impeachment The President does not pardon himself The District Attorney decides to prosecute the sitting President rather than waiting for his term to be over There are probably more I'm missing. With that out of the way, in theory there's no law that says a President cannot serve while in prison, and simply being a felon does not disqualify him from the Presidency. The judge might order that while he was still serving as President, he serve his time under house arrest - he'd constantly be surrounded by police officers, so it would be pretty difficult for him to run, and it would keep him as as able as possible to keep performing the official functions of the office. The judge could also just defer his sentence. Putting him in regular prison would have serious national security implications, both in terms of protecting his person and in allowing him to effectively serve as Commander-in-Chief, so the government could probably make a compelling case against putting a sitting President in prison. According to this Senate Report, the President will also continue to receive Secret Service protection once he leaves office, so long as he is not removed by Impeachment. There doesn't seem to be a provision against that protection if the President is in prison, so the Secret Service would be obliged to find a way to protect him while he is in prison. Most likely this would mean he would be put in an isolated prison wing, possibly with Secret Service protecting his section.
Perhaps. The relevant law is assembled into notes on 3 USC 102. The original act of 1963 defines President-elect in this manner: (c) The terms 'President-elect' and 'Vice-President-elect' as used in this Act shall mean such persons as are the apparent successful candidates for the office of President and Vice President, respectively, as ascertained by the Administrator following the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2. There is no specific statutory provision directing the Administrator of the GSA to ascertain who is that President-Elect. The administration is apparently taking a position similar to that taken by the Clinton administration, that states determine who has been elected, and the states have not officially determined who has been elected: nor has a candidate conceded. If a court orders the Administrator to make the ascertainment, I expect that the administration would appeal the ruling up to the Supreme Court. This letter, addressed to the Administrator, gives the legal rationale.
Different people have suggested different things as to what constitutes, &quot;the unitary executive theory&quot;. The US Supreme Court is not likely to simply adopt such a theory in general terms. It will, instead, rule on a specific case that comes before it, and state the principles behind that ruling. There are a number of Supreme Court rulings saying that a President must abide by laws limiting presidential authority, perhaps the most famous is Youngstown Sheet &amp; Tube Co. v. Sawyer, 343 U.S. 579 (1952) in which the Court rules that the President did not have authority to seize steel mills to put a stop to a labor dispute that was allegedly endangering national security during the Korean War. Congress had passed a law providing a different method of dealing with such situations, and President Truman did not follow the method established by that law. The President has broad power over the operations of executive branch agencies, possibly including the right to order an investigation halted for whatever reasons seem good to the president. If such a case came before the courts and they supported the President, presumably they would hold that the President's actions did not constitute obstruction of justice or any other crime. I find it highly unlikely that the Supreme Court would rule that the President may &quot;act against the rule of law&quot;, but they might rule that in particular cases the law implicitly grants the President power to take certain actions that others may not take.
Short answer: Maybe. Long answer: The answer here varies from jurisdiction to jurisdiction. Normally, the process goes like this: The application for the warrant is usually made under seal or otherwise in secret to prevent the target from trying to hide evidence. So before it's been executed, you can pretty much forget about accessing it. After the warrant is executed, though, there are differing answers to this question. The Supreme Court gave us a test for this kind of question in Press-Enterprise II, which held that the First Amendment gives us a qualified right to access court proceedings and records. The right applies when public access makes sense using the "experience and logic" test: Has the Anglo-Saxon experience typically been to provide access, and does logic tell us that access has beneficial effects for the judicial process? But lower courts have disagreed about how to apply the test. The Eighth Circuit allowed access to warrants in a defense-industry corruption investigation in In re Search Warrant for Secretarial Area-Gunn, but the Ninth Circuit denied access in to warrants in the same investigation in Times Mirror Co. v. U.S. I think, though, that the Ninth Circuit decision would have come out differently if the investigation had already ended. Just to mix things up further, the Fourth Circuit has also allowed access, but based on common law principles of access, rather than the First Amendment. That was Baltimore Sun Co. v. Goetz. Same in the Second Circuit: In re Application of Newsday, Inc. Individual states also have their own rules, but those are of course subject to limits under the First Amendment. When I wanted a copy of a warrant, I would go first to the clerk of the court whose judge signed the warrant. I would tell them what I was looking for, and I pretty much always got it. I would rarely submit a FOIA request, especially if the warrant was issued by a federal agency. Those requests sit in a queue for months or years without being reviewed, and the agency virtually always denies the request anyway. When law enforcement agencies and courts have copies of the same record, you're almost always going to have better luck getting access from the courts, which are set to open by default. If the court denies the request, try again after there's an indictment, and again after the trial.
The Indiana constitution is phrased differently to the US constitution in such a way to exclude pre-emptive pardons: (Indiana) The Governor may grant reprieves, commutations, and pardons, after conviction, for all offenses except treason and cases of impeachment (US constitution) he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. (my emphasis) The Indiana constitution explicitly states that the Governor may grant pardons after conviction and does not give the Governor the power to grant pardons before conviction. By contrast, the Supreme court has judged that the President may issue pardons after commission, that is after the offence has been committed, and potentially before the arrest, trial, conviction or punishment. They can't issue pardons for crimes not yet committed. The scope of pardons issued by the Governor is limited; this power is subject to regulation by law issued by the Legislature, and (if there is no regulation giving sole power of pardon to the president) the Legislature may form a council to review pardons. The council's advice and consent must be sought. In fact, the Legislature appoints the Parole Board to this role. So the Parole Board gives advice and consent to pardons issued by the Governor. In practice, therefore, the Parole Board makes these decisions, as Governors rarely refuse pardons recommended by the Board. Generally, though, pardons are rare, Mike Pence granted only three during his tenure as Governor. References: Constituion of Indiana Guide to pardons in Indiana
The President has the power under Article II of the U.S. Constitution to faithfully execute the laws enacted by Congress. Any power that the President has to regulate international travel of non-U.S. citizens arises from statutes enacted by Congress that give the President (or the executive branch more generally) that authority. Immigration laws, in practice, give very substantial discretionary authority to the President, and public health laws probably also do so. I don't have chapter and verse to cite to you regarding which specific statutes provide that authority, without considerably more research, but that is the general idea. The primary statute regulating immigration is the Immigration and Nationality Act of 1965 (and more generally, Title 8 of the United States Code). It is not uncommon in the United States for there to be disputes over how much discretion a President has under a particular statute in the United States, because unlike parliamentary systems of government, the execution of laws and the passage of law is split between different branches of the federal government in the Presidential system of the United States, rather than being fused with a Prime Minster who serves at the pleasure of the legislature.
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.