Presidential Immunity from Criminal Prosecution
![handle is hein.journals/glj63 and id is 1079 raw text is: PRESIDENTIAL IMMUNITY FROM
CRIMINAL PROSECUTION
GEORGE E. DANIELSON*
Among the serious legal questions raised by the Watergate affair is
whether a President of the United States remains immune from criminal
prosecution while he stays in office. The Watergate Grand Jury, in con-
fronting this problem, expressed a unanimous desire to indict former
President Nixon as a conspirator; the grand jury finally named him as
an unindicted co-conspirator, however, because of Special Prosecutor
Leon Jaworski's admonition that the indictment of an incumbent Presi-
dent legally might not be valid.' Former Vice President Agnew in-
voked the argument that he was immune from criminal indictment in
attempting to thwart a grand jury investigation of his activities.' Dur-
ing hearings on the impeachment of President Nixon several members
of the House Committee on the Judiciary also maintained that an in-
cumbent President of the United States cannot be indicted and tried
for a criminal charge until after he is impeached and removed from
office.3 Despite the arguments of Special Prosecutor Jaworski and
several congressmen, however, the proposition that an incumbent
President is immune from criminal prosecution lacks authority in the
Constitution or in the laws of the United States.
Although the Constitution expressly grants a limited privilege from
arrest to Senators and Representatives,4 it confers no similar privilege
on the President. Indeed, the framers apparently considered such a
provision and rejected it. At the Federal Constitutional Convention of
1787, during discussion of legislative privileges, James Madison sug-
gested the necessity of considering what privileges ought to be allowed
*Member of United States House of Representatives, Thirtieth District of Cali-
fornia, 1971-.
1. See Washington Post, June 6, 1974, § A, at 1. The Supreme Court in United
States v. Nixon did not have to resolve the issue of whether an incumbent president
could be indicted. See 418 U.S. 683, 687 n.2 (1974).
2. When Vice President Agnew simultaneously resigned his office and entered
a plea of no/o contendere to charges of criminal tax violations on October 10, 1973,
the issue of whether he could be indicted while holding office became moot. See
Agnew: Second Vice President in U.S. History to Resign, CoNG. Q. ALMANAc, 93d
Cong., 1st Sess. 1054-59 (1973).
3. See HousE Cozltq. ON T-E JUDICIARY, IMPEACH-MENT OF RICHARD M. NIXON,
PRESIDENT OF THE UNrrED STATES, H. R. REP. No. 93-1305, 93d Cong., 2d Sess. 362-72
(1974) (minority views of Congressmen Hutchinson, Smith, Sandman, Wiggins, Dennis,
Mayne, Lott, Moorehead, Maraziti, and Latta).
4. See U.S. CONST. art. I, § 6.
[1065]](ViewImageLocal?handle=hein.journals/glj63&div=66&collection=&method=preview&ext=.png&size=3)
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Presidential Immunity from Criminal Prosecution
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