Who has the power to arrest the president? [View All]

Dear Straight Dope:

On the final show for "24" last season, the U.S. attorney general ordered federal agents to take custody of the president. Is this legal? Who has the power to arrest a sitting president should he or she commit a crime? I thought I read somewhere that only a U.S. marshal could arrest the president but I can't find anything on the web. Help. —Chris Chambers, Dublin, Ohio

SDSTAFF Gfactor replies:

Although your question has an easy answer, it raises an issue that has vexed constitutional law scholars for a long time. First the easy part. There's no distinction in federal or state statutes between arrestees. For example, 18 U.S.C. §3052 gives FBI agents the power to "serve warrants and subpoenas issued under the authority of the United States and make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony." Section 3053, which governs U.S. marshals, gives them similar authority to make warrantless arrests. Not all federal agents have the same broad arrest powers, but nothing in the statutes prevents them from arresting government officials. Similarly, state law enforcement officers can arrest those who violate state laws. There's no real debate about this.

On the other hand, there is controversy about whether the president is subject to indictment (and therefore arrest) no matter who does the arresting. Given all the hot water presidents have been in since the days of Richard Nixon, you'd expect there to be a ready answer to this question by now. But there isn't.

For example, at a 1998 Senate hearing on the subject chaired by John Ashcroft, professors Freedman and Turley said the president could be criminally indicted and prosecuted (at least under some circumstances); professors Amar and Bloch said he couldn't. Three former federal prosecutors also testified. Two said the president could be prosecuted; one said he couldn't.

What we're talking about here is presidential immunity. The Constitution is silent on this question. It says the president can be impeached, but that raises as many questions a it answers. Can the president be indicted and tried? If so, must the president be impeached first? If convicted of a crime but not impeached, could the president be required to serve a sentence while still in office? If the president is impeached, does the double jeopardy clause prevent subsequent criminal prosecution on the same grounds? If the president can't be prosecuted while in office, what happens if the statute of limitations runs out before his term expires? If convicted while in office, could the president pardon himself?

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http://www.straightdope.com/mailbag/mprezarrest.htm

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It's a long post, but a interesting read.