What happens if the US President Elect is arrested by federal authorities before inauguration?

  • If, after election and before inauguration, a US president elect is indicted under federal law, what would happen to the office?

    I added the United States tag, as the terminology matches and that's what the first (and second) answer assumed. If that's not the correct country please replace correctly.

    A President can always pardon themselves for the crime or alleged crime.

    Eugene V. Debs *ran* for president after being *imprisoned* by federal authorities. He got about a million votes.

    The president elect (like anybody else) is presumed to be innocent until proven guilty. Your question makes no sense.

    @MartinSchröder So what? It's your comment that does not much sense… For starters, many officials in a great many countries enjoys special procedural protections or even full immunity because being indicted or investigated (let alone arrested) can interfere with their duties or threaten their independence. To which extent this applies to the US president elect or what would happen to the procedure after he or she assumes office are valid questions.

    We would be looking at a Constitutional crisis the magnitude we haven't seen since the Civil War. We are well on our way.

    Do the secret service have to hang out with him in jail?

    On January 6 2021 this question has an entirely different meaning.

  • The President-Elect would be sworn in on January 20 and assume the office of President. They could choose to step down (and the VP-elect would take the office), but they do not have to.

    (+1) What would happen to the procedure after that? Does the US president enjoy special protections? Would it be stopped for the duration of the president's mandate and resume afterwards? Can a president be forced to appear in court, arrested, etc.?

    @Relaxed You should really put this in a new question, but basically there is no rule that says the president can't be in prison, and no special protections, etc. The president can be subpoenaed, arrested and all but realistically what would happen is that they would be impeached real fast if they got arrested.

  • @cpast's answer is correct as far as it goes. An indictment would not prevent a a president-elect from assuming office. In that situation, Congress could impeach the new president or refuse to certify the election results (which would provoke a constitutional crisis).

    It seems a bit unlikely though. An indictment (or even an investigation) before the election would be more effective at keeping that person from being elected. If done soon enough, the candidate's party could replace her or him on the ballot. If done just before the election, this could easily cause that candidate to lose. So this would generally be done earlier in the process.

    *If done just before the election, this could easily cause that candidate to lose.* - you would think....

  • An indictment is just a formal accusation that a person committed a crime. It does not mean that it was already proved that the person is guilty. In a society which respects rule of law (like the United States) a person is considered innocent until convicted by a court of law. So the indictment alone would not have any consequences whatsoever for the status of the president, except for being forced to follow instructions by law enforcement. In theory it might even come to the weird situation that the president is forced to lead the country from their jail cell while waiting for the court case to finish.

    Curiously even a conviction of a major crime does not yet mean that the president needs to step down. However, being convicted of "treason, bribery, or other high crimes and misdemeanors" is reason to start the formal impeachment procedure which eventually results in removing the president from office if congress and senate agree to do so.

    *considered innocent* only in theory if you are not wealthy and powerful or popular...

  • This depends. If the President-elect is arrested but not yet convicted, he or she is still capable of entering the White House. However, many of his/her privileges would (could) be restricted, such as his/her security clearance (see below). Knowing that an arrest might hinder his/her ability to do the job, he/she has two effective choices: (1) move forward with the swearing-in ceremony, allow the judicial process to continue, and if found guilty, almost certainly be impeached while simultaneously pardoning him/herself; (2) move forward with the swearing-in ceremony and resign shortly thereafter, giving the White House to his/her Vice President.

    Here is where it gets tricky:

    One thing that would probably not happen is a step-down after election but before the inauguration because that would place the decision of the Presidency in the hands of the House of Representatives. In other words, it is treated as if neither party won the electoral college. The President-Elect cannot turn over the White House to his/her VP because he/she has not yet been inaugurated, thus that power to resign is not yet vested (i.e., you cannot resign from that which you do not yet have).

    Another curve ball...

    If the President-Elect is arrested for a federal statute outside of the scope of judicial process (e.g., mishandling classified documents, 18 U.S. Code § 798) that could eliminate a trial process [believe it or not, this happens]. If an executive statute is broken (CFR), the President is obligated through the presiding cabinet official (Secretary of State... Defense... Attorney General, etc) to deny the President-Elect executive privileges typically consistent with the Office of the Presidency (this is called debarment; not to be confused with disbarment, a procedure reserved for lawyers). There is no right to judicial process - as an American - if you are arrested and determined to have broken an executive statute. It is the only process in the United States within which someone accused is presumed guilty and must prove innocence during a review run by technocrats. If the President fails to act, the Senate could demand the Sergeant of Arms remove the President-Elect's privileges by a straight up-and-down vote. At that point, the Sergeant of Arms literally bars the President-Elect from entering the White House until he/she can be removed by Congress or he/she resigns.

    The latter would be a bad day for the United States...

    Do you have some kind of citation for this disbarment process you describe, distinct from that used for federal contractors? Because the Sergeant of Arms blocking the doors to the White House raises all kinds of Separation of Powers problems, and at that point you're really not following any kind of Constitutional procedure so much as making stuff up and seeing what happens, and once you've thrown out the owner's manual, basically anything is a possible answer to "what happens if."

    @ZachLipton, further cause for skepticism is the following page, with much the same text, attributed to an author of the same name, with the addition of a photoshopped picture of Clinton in some kind of restraint and a scenario in which she's subject to the debarment process for mishandling classified documents: http://baconbooksandbullets.com/what-happens-if-a-president-elect-is-indictedarrested-answer/

    @AlexCoventry Good find. I'm not aware of any serious sources indicating that debarment, a process that applies to federal contractors accused of wrongdoing, applies to the Presidency. If someone for some reason did try to apply such a process, we'd be in Constitutional Crisis/Calvinball land where no rules apply and you can't really predict what would happen. Once you're just making up the rules, there's no governmental process you can apply to see what will happen next.

    In short, the last paragraph basically boils down to "what happens if the Senate declares a coup?" And the answer is nothing good, but who knows?

  • A president cannot be impeached for crimes that occurred before they became president. If the indictment comes before the election, there are many scenarios that could take place. 1. They could drop out voluntarily 2. Their party could replace them with whomever they all agree on.
    3. They could be elected and the electoral college could reject the outcome.
    4. They could be elected and after they are sworn in they could pardon them self.

    If that is true about impeachment, you should link to some kind of source supporting it.

    "The President ... of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Nothing in there about "before" or "after".

  • The current president would nullify the election results and call for a special election and would vacate the office of the presidency after the new election results are formed. How long that might be who knows. We will see claims of dictatorship for sure. We might be seeing a historical event happen here with the current election and its scandals

    There is no provision for calling for a special election for President, so this would not happen.

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Content dated before 7/24/2021 11:53 AM