![]() ![]() At least one incarcerated presidential candidate, Eugene Debs, garnered almost a million votes out of a total 26.2 million cast in the election of 1920. Yet what to do if citizens actually elect an indicted or incarcerated president? Translation: The president couldn’t do his job. But imprisonment would also obviously compromise a president’s ability to access such information, which must often be stored and viewed in a secure room that has been protected against all manner of spying, including blocking radio waves – not something that’s likely available in a prison.Īs a result of the president’s varied duties and obligations, the memos concluded that “he physical confinement of the chief executive following a valid conviction would indisputably preclude the executive branch from performing its constitutionally assigned functions.” Moreover, presidents need access to classified information and briefings. Nor could they inspect the aftermath of natural disasters from coast to coast, celebrate national successes and events or address citizens and groups on issues of the day, at least in person. They obviously wouldn’t be able to do these things while in prison. Modern presidents are peripatetic: They travel nationally and globally on a constant basis to meet with other national leaders and global organizations. and abroad in ways that cannot be performed while imprisoned, constitutional law scholar Alexander Bickel remarked in 1973 that “obviously the presidency cannot be conducted from jail.” Core functions affectedĪccording to the 1973 memo, “the President plays an unparalleled role in the execution of the laws, the conduct of foreign relations, and the defense of the Nation.”īecause these core functions require meetings, communications or consultations with the military, foreign leaders and government officials in the U.S. The memo here refers to the inconvenience of a criminal trial that would significantly detract from the president’s time commitment to his burdensome duties.īut it’s also lawyer’s language to describe a more direct impediment to the president’s ability to govern: He might be in jail. The earlier memo used strong words: “he spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination.”Įven more pointedly, the memos observe that a criminal prosecution against a sitting president could result in “physical interference with the President’s performance of his official duties that it would amount to an incapacitation.” ![]() In evaluating whether a sitting president could be indicted or imprisoned while in office, both the 19 memos outlined the consequences of a pending indictment for the president’s functioning in office. But what about a president indicted, convicted, or both, before taking office, as could be the case for Trump? These two memos addressed whether a sitting president could, under the Constitution, be indicted while in office. The memo reflected on a 1973 Office of Legal Counsel memo produced during Watergate titled “Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office.” The background to the 1973 memo was that President Richard Nixon was under investigation for his role in the Watergate break-in and Vice President Spiro Agnew was under grand jury investigation for tax evasion. This point – that functioning as president would be difficult while under indictment or after being convicted – was made plain in a 2000 memo written by the Department of Justice. But in the case of conviction, incarceration in state or federal prison involves restrictions on liberty that would significantly compromise the president’s ability to lead. ![]() Ultimately, though, the spectacle of a criminal trial in state or federal court would have a dramatic effect on a presidential campaign and on the credibility of a president, if elected.Īll defendants are presumed innocent until proved guilty. ![]()
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