Can A Sitting US President Go To Jail?

It fell to the Supreme Court to clarify. Richard Nixon was sued by Ernest Fitzgerald, a USAF contractor whom Nixon had fired over his testimony to Congress using the excuse of a reduction in force. Nixon claimed absolute immunity, and the case went to SCOTUS.

In Nixon v. Fitzgerald (via Cornell LLI), SCOTUS ruled that the president had absolute immunity from civil lawsuits over potential constitutional violations committed while executing his responsibilities. The majority opinion, written by Justice Lewis Powell, cited the early Commentaries on the Constitution from 1833, which read, "The president cannot, therefore, be liable to arrest, imprisonment, or detention ... and for this purpose his person must be deemed, in civil cases at least, to possess an official inviolability." SCOTUS, however, rejected the Office of Legal Counsel claim that the separation of powers doctrine insulated the president from the judiciary.

The dissent, led by Justice Byron White, charged that the majority had effectively given the president blanket immunity from criminal prosecution as well. White noted that the Constitution does not bar "Indictment, Trial, Judgment and Punishment, according to Law," suggesting that a president could be indicted and tried legally. The majority dismissed the concern as irrelevant because the Fitzgerald case concerned civil suits. But Powell never claimed White was incorrect, suggesting that a sitting president was not protected from criminal liability — at least in theory. But as the OLC memo noted, there is a difference between theory and practice, given the practical hurdles to prosecuting a sitting president.

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