This symposium addresses the difficult question of whether a President can be criminally prosecuted while still in office or whether indictment and prosecution must await his leaving. The question is difficult because the text of the Constitution gives us some hints but no dispositive answers. At first reading, Section 3 of Article I seems to suggest that impeachment must precede any criminal prosecution: "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." Thus, the provision suggests it may be prescribing a temporal order - impeachment and then prosecution. However, closer analysis reveals that the provision may simply be defining and limiting the effects of impeachment and making clear that other punishments can be still imposed by the criminal process without violating any prohibitions against double jeopardy; it may not be addressing the issue of order at all.
Susan Low Bloch, Can We Indict a Sitting President?, foreword to Ought A President of the United States Be Prosecuted, 2 Nexus 7 (1997).
Scholarly Commons Citation
Bloch, Susan Low, "Can We Indict a Sitting President?" (1997). Georgetown Law Faculty Publications and Other Works. Paper 1560.