The Law: The Contours of Presidential Immunity

Abstract

Can a sitting president be subpoenaed, indicted, or prosecuted for criminal activity? This article concludes that a president can be. Strong arguments for presidential immunity emphasize the unique position of a president in the constitutional order. Only Congress, advocates of immunity claim, can discipline presidential lawbreaking. However, arguments for presidential immunity depend upon contestable assumptions regarding the respective institutional authority of Congress and the judiciary. If institutional authority is viewed differently—and this article offers good reason to do so—then the contours of presidential immunity should be narrowly drawn so as to invite judicial intervention.