• Criminal Immunity and Schrödinger’s Presi-dent: A Response to Prosecuting and Punish-ing Our Presidents

    Brian Kalt
    MSU Law Faculty Repository
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    In his article, Prosecuting and Punishing Our Presidents, Saikrishna Prakash argues that sitting presidents have no constitutional protection from being arrested, prosecuted, and incarcerated while in office. He depicts the constitutional case for immunity—which he concedes is “orthodoxy” and “[t]he received wisdom”—as an empty vessel, conjured by people with skewed, wishful readings of the Constitution. As one of the alleged conjurers, I appreciate this opportunity to respond. Prakash is a tremendous scholar, accomplished and principled, and his article is a useful contribution to this centuries-long constitutional debate. But several of his arguments are flawed and much of his historical evidence is oversold or incomplete. In addition, his response to the pro-immunity argument sidesteps key elements of it. That said, Prakash and I agree that there are reasonable arguments on both sides of the immunity question. Orthodoxy or no orthodoxy, there is currently no way to say with certainty that sitting presidents are or are not immune. Presidents have broken the law without being prosecuted, but presidents are constrained from engaging in more extensive criminality by the possibility that courts might reject immunity. Until the constitutional question is resolved—not by professors debating it but by prosecutors and presidents litigating it—sitting presidents are like Schrödinger’s cat, simultaneously immune and not immune. Part I of this response critiques Prakash’s anti-immunity argument. Part II turns to Prakash’s treatment of pro-immunity arguments, critiquing it too but also acknowledging its strengths in places and clarifying my own pro-immunity position in response. Part III considers Prakash’s proposals for legislative reform, explains why Congress likely will not act, and contemplates where this leaves us.
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