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Under What Circumstances Can a State Indict a Sitting President?

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Justin Oetting
Justin Oetting
2020

The question of whether States can indict a President has not been ruled on directly by the Supreme Court, nor is it expressly covered by the Constitution. To explore this question, this thesis evaluates the competing interests between the State and the federal government, weighs those interests, and creates a rule to guide how States can proceed against a President. While a trial of a President may not be possible, it seems that at least in some circumstances the balance of factors would weigh in favor of permitting States to indict, and not simply investigate, a sitting President. As long as the indictment does not impinge on the President’s official duties or compel the presidency to take any action as a matter of process, States can indict, though with some limitations.

 

Keywords

State investigation, Clinton v. Jones, Nixon v. Fitzgerald, U.S. v. Nixon, McCulloch v. Maryland, Office of Legal Counsel, federalism, comity, Younger abstention