Can Presidents Be Prosecuted or Sued? Professor Explains Differing Visions of Immunity

January 27, 2023 By Mary Wood, Mary Wood,

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.

U.S. 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 a similar investigation into former President Donald Trump’s storage of classified files at his Florida home, Mar-a-Lago. 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’s paper, “Prosecuting and Punishing Our Presidents,” was published in the Texas Law Review in 2021. In the article, he argues that although 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.

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Portrait of Saikrishna B. Prakash
Saikrishna B. Prakash is a University of Virginia School of Law professor and expert on presidential power. (Photo by Jesús Pino)

Q. Where does the idea that the president is immune from criminal prosecution come from?

A. 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 Office of Legal Counsel does not believe that a state prosecutor or even a federal prosecutor should be able to prosecute the president and eventually put him or her in jail, because they don’t think the Constitution would allow a local or federal prosecutor to incapacitate the chief executive.

The Office of Legal Counsel’s claim is grounded on structural intuitions of the same sort that led the U.S. 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.

Q. What do the Constitution and contemporaneous accounts say about the idea of immunity?

A. 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.

Q. You point out a past case of a president facing arrest.

A. 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.

Q. So the Justice Department says the president is immune from federal criminal prosecution. What about civil suits?

A. 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.

Q. The Justice Department is conducting investigations of former President Trump on multiple matters that could lead to criminal charges. How can they reassure people who fear it’s a partisan exercise?

A. 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.

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Q. There’s this new wrinkle with classified documents connected to Biden in addition to classified documents connected to Trump being found in their private homes and other spaces that aren’t supposed to house such information.

A. 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.

Q. Now that the Jan. 6 committee has turned over its report recommending criminal charges against President Trump to the Justice Department, what are the potential next steps?

A. 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 are 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 Department of Justice prosecute someone because the House or the Jan. 6 committee believes the president committed a crime.

Q. What is the latest turn of events making you think about?

A. 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 an 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.

For the full interview, see the UVA School of Law website.

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Mary Wood

Chief Communications Officer University of Virginia School of Law