What are the legal standards for charging a former president with a crime?

1. Constitutional baseline — no explicit immunity in the text

The Constitution contains no explicit grant of blanket immunity for presidents from criminal prosecution, and many scholars argue that the Framers’ omission supports the view that presidents can be held to ordinary criminal laws once out of office ^{[5] [6]}.

2. Presidential immunity doctrine after Trump v. United States — a three‑part framework

The Supreme Court in the recent litigation over a former president articulated a structured approach to immunity, explaining that some “core” executive acts may be absolutely protected while other acts fall within a presumptive or rebuttable immunity that a court must evaluate case-by-case, creating a three‑part framework for assessing whether particular conduct is protected ^{[2] [3]}.

3. DOJ practice and OLC opinions that shaped earlier restraint

The Department of Justice historically followed Office of Legal Counsel memoranda concluding that indicting a sitting president would be unconstitutional or improper because of the extraordinary burdens on governance, a policy that has informed practice even though it is an internal DOJ view rather than binding constitutional law; those memoranda also distinguished the treatment of sitting presidents from former presidents ^{[7] [8]}.

4. Impeachment is not a legal bar to criminal prosecution

Longstanding Justice Department and OLC positions, echoed in legal scholarship and government filings, hold that a Senate acquittal does not preclude later criminal indictment of the same conduct—impeachment is a political remedy distinct from criminal law—so former presidents can, in principle, be prosecuted even after an acquittal ^{[8] [6]}.

5. Practical prosecutorial standards and judicial gatekeeping

Practically, prosecutors must (a) identify acts that are not protected by absolute or presumptive immunity under the Court’s framework and (b) prove the elements of the charged offenses beyond a reasonable doubt; federal and state courts act as gatekeepers, and recent appellate rulings rejected claims of categorical immunity while acknowledging that immunity doctrines will limit prosecutions in some circumstances ^{[1] [2]}. The Court’s standards make certain official uses of power—especially those at the “core” of executive authority—hard to prosecute, and where immunity is asserted prosecutors face high legal thresholds to show those acts fall outside protected territory ^[4].

6. Competing legal views and the political stakes

Legal opinion is split: some scholars and courts emphasize the absence of textual immunity and the public interest in criminal accountability, arguing former presidents should be treated like other citizens ^{[5] [1]}, while critics warn that expansive immunity doctrines in recent jurisprudence could effectively shield presidents from serious misconduct, raising concerns about separation-of-powers consequences and political weaponization of prosecutions ^{[4] [9]}. Proposals to reduce uncertainty include congressional action or procedural safeguards before prosecuting a former president—ideas debated in academia and public commentary but not settled law ^[10].

Conclusion — high legal bar, no blanket protection

The bottom line in current law and practice is that a former president can be charged, but prosecutions tied to official acts must clear complex immunity questions first; prosecutors must identify unprotected conduct and marshal evidence sufficient to overcome presumptions of immunity, while courts will apply a fact‑specific, multi-part test that leaves considerable room for litigation and appellate review ^{[2] [1]}.