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"The Presidential Privilege Against Prosecution" 2 Nexus 11 (1997)


Can a sitting President ever be criminally prosecuted (outside an impeachment court)? The question has been debated-sometimes hotly, sometimes coolly-since the beginning ofthe Republic. Although the long pedigree ofthis debate suggests that reasonable people can disagree, we believe that the best view ofconstitutional text, history, structure, and precedent supports the conclusion that Justice Story reached: Sitting Presidents cannot be prosecuted. This privilege does not place Presidents above the law; they can be held accountable for their actions after they leave office, and they can be impeached to hasten this. The privilege does not make Presidents imperial; their special status is ultimately traceable to the rights of the American People. Nor does the privilege clash with the structure of American constitutional government; the President is constitutionally distinct from other, prosecutable officials.

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