What are the legal procedures and precedents for arresting a former or sitting president in the United States?
Executive summary
The Constitution provides impeachment as the chief constitutional mechanism for removing a sitting president, while the Justice Department historically treats a sitting president as immune from criminal indictment or prosecution—a position rooted in Office of Legal Counsel memoranda and longstanding DOJ policy [1] [2]. By contrast, legal scholars and courts accept that former presidents can be charged, and modern practice has seen investigations of sitting presidents without formal indictment while in office [3] [4].
1. Constitutional framework and DOJ policy
The Constitution lays out impeachment and removal for "high crimes and misdemeanors" as the explicit congressional check on a president, but it does not expressly address criminal prosecution; the Supreme Court has never squarely decided whether a sitting president may be criminally prosecuted, leaving the question unresolved in case law [4] [2]. In practice, the Department of Justice’s Office of Legal Counsel has for decades taken the authoritative position that indictment or prosecution of a sitting president would unconstitutionally impair the executive branch’s ability to function, a view memorialized in OLC opinions and reflected in DOJ policy that no federal prosecutor will indict a president while in office [1] [3].
2. Investigations, subpoenas and limits on process while in office
OLC opinions do not forbid criminal investigation; they differentiate between subjecting a president to investigation and actually indicting or arresting one, so special counsels and prosecutors have pursued inquiries and subpoenas targeting sitting presidents while respecting the DOJ policy against indictment during tenure [1] [5]. Courts have allowed civil litigation against presidents for private acts (see Clinton v. Jones precedent referenced by commentators), and prosecutorial attention has historically been applied to presidents through investigative processes without formal criminal charging while they remain in office [6] [5].
3. Arrest, indictment and historical precedents
There is essentially no modern precedent for arresting a sitting president on criminal charges; the only oft-cited historical anecdote—Ulysses S. Grant’s alleged 1872 arrest for speeding—lacks uncontested documentary confirmation and is disputed by historians, so it cannot be treated as settled precedent that a president has been prosecuted while in office [6] [3]. Because no federal court has ruled on the constitutionality of indicting a sitting president, the practical procedure would confront constitutional litigation, separation-of-powers arguments, and likely emergency Supreme Court review before any arrest or trial could proceed [2] [4].
4. Former presidents: a clearer legal path to prosecution
Legal consensus is stronger that a former president can be indicted and prosecuted for crimes committed before, during, or after their term; DOJ policy does not shield ex‑presidents, and commentators and courts have treated post‑tenure criminal liability as viable—meaning arrest, indictment and trial are legally possible once the person is a private citizen [3] [4]. Scholarly work tracks historical practice and Founders’ debates that support prosecutorial authority over former executives, even if scholars disagree about scope and timing [7] [8].
5. Political remedies, impeachment, and hidden incentives
Impeachment remains the only constitutional removal mechanism, and proponents of the OLC position argue that criminal prosecution would preempt impeachment’s political remedy and destabilize governance; critics counter that a blanket immunity creates perverse incentives and could let serious criminality escape accountability until after a term ends [1] [3]. The OLC’s posture reflects an institutional interest in preserving executive functioning and has the practical effect of insulating sitting presidents from criminal charging—an outcome with clear political and constitutional implications that warrants scrutiny [1] [5].
6. Open questions and likely sequence if charges were pursued
If prosecutors believed criminal charges were merited against a sitting president, the likely sequence—absent settled Supreme Court control—would be intense litigation over immunity, interplay with impeachment proceedings, and probable Supreme Court involvement to resolve jurisdictional and separation‑of‑powers disputes; existing sources make clear the law is unsettled and would be tested in real time [2] [4]. Reporting and scholarship agree on one practical point: while investigation is feasible, actual arrest and prosecution of a sitting president remains legally fraught and politically explosive, whereas prosecution after leaving office is the established and practicable route [1] [3].