Can a sitting US president be indicted under the Constitution for treason?

1. Constitutional text: impeachment first, criminal liability later

The Constitution explicitly treats treason as an impeachable offense and prescribes removal from office upon conviction in an impeachment trial (Article II, §4), while other text indicates that persons convicted in impeachment proceedings “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law,” signaling that criminal proceedings can follow political removal ^{[1] [5] [2]}. The Framers deliberately put impeachment and criminal trial in separate channels: impeachment is a political remedy administered by the House and Senate, not by the courts ^{[1] [6]}.

2. Treason as a legal crime: narrow definition and statute

The Constitution and federal law narrowly define treason as levying war against the United States or giving aid and comfort to enemies, and Congress has codified treason and related offenses in federal statutes with severe penalties, including loss of office eligibility and imprisonment ^{[7] [8]}. That narrow definition matters because not all conduct labeled “treasonous” in politics meets the legal elements required for a criminal treason indictment ^{[7] [8]}.

3. The legal blank spot: no Supreme Court test and divergent doctrinal views

Because criminal charges have never been brought against a sitting president, the Supreme Court has no controlling decision on the question, leaving a legal gap that scholars and courts have tried to fill by inference from constitutional structure and precedent ^{[3] [9]}. The Court has rejected the idea that impeachment must precede criminal prosecution in all cases—but that ruling did not resolve whether indictment of a sitting president is constitutional ^{[3] [9]}.

4. Executive-branch practice: OLC’s position against indicting a sitting president

The Justice Department’s Office of Legal Counsel has long advised that indicting a sitting president would impermissibly undermine the executive branch’s capacity to function, concluding that criminal prosecution should be deferred until after removal from office, an interpretation that has guided DOJ practice though it is not binding law ^{[4] [10] [3]}. Those memoranda rest on structural separation-of-powers arguments: permitting a prosecutor to incapacitate the president would conflict with the Constitution’s allocation of removal power to Congress ^[4].

5. Scholarly counterarguments: the Constitution does not categorically bar indictment

A robust body of scholarship contests the OLC view, arguing that the Constitution contains no explicit immunity for a sitting president from criminal indictment and that criminal accountability is consistent with rule-of-law principles; proponents point to textual signals that presidents remain “liable” after impeachment and to the absence of an explicit privilege in the text ^{[11] [5]}. These scholars concede structural concerns—particularly with state or local prosecutors—but argue that federal prosecution of crimes like treason could be constitutional and necessary in extreme cases ^{[11] [12]}.

6. Practical and political realities: treason prosecutions and the likely path

Given the narrow legal definition of treason, the political tools the Constitution gives Congress (impeachment and removal), the OLC practice guidance at the Department of Justice, and the absence of Supreme Court precedent, the most likely constitutional path in practice is impeachment and removal first and then criminal indictment for treason thereafter; though authoritative legal opinion differs, a sitting president being criminally indicted for treason while in office would be unprecedented and would invite immediate—and unresolved—constitutional litigation ^{[1] [4] [3] [11]}.