In an interview at the White House recently, Donald Trump is quoted threatening a journalist with prison time by saying:
"You can go to prison instead,"
Is the president of the United States legally able to send someone to prison?
asked Jun 21, 2019 at 20:26
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12@DaveGremlin I'm also UK, but am intrigued to know what the difference is between "jail" and "prison" in the USA?– WS2Commented Jun 22, 2019 at 12:05
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21@WS2: jail is temporary holding where you go awaiting trial, prison is where you get sent if you are found guilty. Thus, going to jail requires probable cause (and hopefully a warrant), while going to prison requires a criminal conviction.– LindaJeanneCommented Jun 22, 2019 at 12:30
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24This is a pretty underhanded misinterpretation of the event. If I see someone doing something I believe is illegal, it's perfectly fine to inform them that they can go to prison. Obviously that doesn't mean that I can personally send them there.– pipeCommented Jun 22, 2019 at 14:09
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11@pipe I think you're reading too much into the question. Trump said what he said, which begs the question "could the POTUS actually do that?" even if it's pure speculation (I don't think anyone thinks he meant it literally).– Jared SmithCommented Jun 22, 2019 at 14:32
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7How hard is it to declare a US citizen an illegal alien warrior and have her send to Gitmo where she would be outside US jurisdiction?– Martin SchröderCommented Jun 22, 2019 at 20:28
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9 Answers
In a word: no. The President cannot just order someone to prison.
The Fourth Amendment prohibits unreasonable search and seizure except on probable cause of a crime being committed.
The Fifth Amendment requires felony charges to be brought by a Grand Jury.
The Sixth Amendment requires trial by jury for criminal cases.
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32Also, Article 1 sections 9-10 prohibit bills (and presumably executive orders) of attainder.– dan04Commented Jun 22, 2019 at 4:31
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12+1 Also, the section of the constitution mentioned by @dan04 prohibits ex post facto criminal laws, so a law can't be made to prosecute a person afterwards. Contrast this with the founding fathers' stance on pardons: lawsandsausagescomic.com/comic/1201 Commented Jun 22, 2019 at 12:26
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13There is a caveat to this, the NDAA allows the government, and presumably the president, to indefinitely detain even US citizens without charging them with a crime if they are suspected of being involved in terrorism. It is still facing legal challenges but as it stands the law exists and could be used.– KaiCommented Jun 23, 2019 at 18:18
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7See also the Nisei in WW2. en.wikipedia.org/wiki/Korematsu_v._United_States The president can do anything that they can persuade the Supreme Court to concur with.– RichCommented Jun 24, 2019 at 5:56
It is absolutely correct that a president cannot just point at someone and say, "Jail that person!" and have it happen automatically.
What a president can do is go to the Attorney General and say, "Investigate, indict, and prosecute that person." Then the Justice Department has to attempt those things, subject of course to court and jury approval.
I've heard even private citizens threaten to have someone thrown in jail. In general it just means that the person is going to make a legal complaint that they expect law enforcement will investigate and proceed accordingly.
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6And even if the person threatened is confident that they will prevail against an attempt to put them in prison by proper exercise of criminal procedure and law, the effort and expense required to do so, especially at the federal level, give such a threat real teeth. Commented Jun 23, 2019 at 2:51
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2and of course that means the president does not send that person to prison, a court does after the president presses charges that that court considers serious enough and proven to warrant a prison sentence :)– jwentingCommented Jun 24, 2019 at 3:29
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@JohnBollinger Even if a person threatened is confident they would prevail in a just, competent, fair system completely free from corruption and other human shortcomings, the threats of a private individual connected on the "right" side of a relationship with one or more officials who fall short of that standard can give the threat real teeth.– WBTCommented Jun 24, 2019 at 13:30
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The difference in the case of the President is that the law enforcement officials are unlikely to ignore the request, which they might do in the case of a complaint by a private individual.– BarmarCommented Jun 25, 2019 at 0:23
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2Then the Justice Department has to attempt those things... No, they don't and typically wouldn't without a cause beyond merely the President's say so. Like almost all federal government employees they take an oath to support and defend the constitution, not the president. Commented Jun 25, 2019 at 2:58
During the civil war Abraham Lincoln had members of the Maryland state legislature arrested and jailed without charge. He was concerned that Maryland would also secede, leaving D.C. between two Seceded states. To this day the Maryland state song has a verse referring to "resisting the tyrant"- referring to Lincoln!
He was able to do that because article 1 section 9 of the constitution requires "Habeus Corpus" (you must show, to a judge, at least some evidence that the person has committed a crime) "unless when in Cases of Rebellion or Invasion the public Safety may require it."
For example, in the case of the American Civil War, Habeas Corpus was suspended per the Habeas Corpus Suspension Act (1863).
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Can you quote specifically where the quote is from? I found something similar in relation to Congress, but not relating to the president.– JJJ ♦Commented Jun 22, 2019 at 12:33
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2@Jasen what invasion do you have in mind? Where are there hostile military forces on US territory?– phoogCommented Jun 22, 2019 at 23:48
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4I can't speak for Jasen but I suspected that he was referring to putative "invasion" by illegal immigrants. Commented Jun 23, 2019 at 0:52
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2Don't you remember, Trump declared this a national emergency. @phoog– BarmarCommented Jun 25, 2019 at 0:25
The President is not a Law Enforcement Officer despite his role being ultimately in charge of their policy, so he cannot personally place someone under anything other than citizen's arrest. However, he could possibly order one of the uniformed officers in the Secret Service standing outside the door to arrest the journalist. In this case, the officers could reason that they had probable cause to arrest the journalist under 41 CFR 102-74.420, which carves out photograph permission exceptions where "...security regulations, rules, orders, or directives apply or a Federal court order or rule prohibits it..." (with the rest being mostly permissive to taking photographs for news/non-commercial purposes inside federal facilities), under the theory that the President's forbidding of taking such a photograph counts as a "security order." Under County of Riverside v. McLaughlin, they could then hold the journalist for up to 48 hours in jail before having to release them. It's questionable whether the US Attorney for DC would be willing to follow up on those charges - the President could theoretically pressure her to do so, but it's unlikely the judge would allow further incarceration since the charges are highly unlikely to prevail. With that said, the President would have succeeded in holding the journalist in jail for 48 hours (assuming the journalist's lawyer is not able to get a court order ending the incarceration early).
The officers could then be charged and/or sued for depriving the journalist of their civil rights, arguing that the arrest was unlawful. There would likely be a strong case.
answered Jun 21, 2019 at 22:33
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4In the US, jail and prison are not synonymous. "Sent to jail" : yes. "prison time" : no. +1.– MazuraCommented Jun 22, 2019 at 5:44
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6"The President is not a Law Enforcement Officer.." … This doesn't sound right. Maybe you should word this differently. Of course the President is a law enforcement officer. He / She is the chief law enforcement officer of the nation. He / She is in charge of the Executive Branch, who's duty is to enforce the laws passed by Congress. Commented Jun 22, 2019 at 11:52
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8@michael_b I respectfully disagree that the sentence is incorrect. LEO is a specific term for persons credentialled by LE Agencies to enforce the law, and have special powers as a result. The President is not a LEO in the same way that despite being Commander-In-Chief he is not a soldier. Commented Jun 22, 2019 at 13:42
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1@grovkin The term "Law Enforcement Officer" is defined in 5 USC 8401 17. He is perhaps a "Law Enforcement Official," but not a LEO per federal statute (or any state statute I've looked at). As an aside, an employee or soldier that commits a crime or incurs civil liability under US law while following the orders of a superior can be held criminally and/or civilly liable for that, so in fact there is an explicit system of checks and balances in the Executive Branch - anyone can disobey orders which would cause them to break the law. Commented Jun 23, 2019 at 2:34
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2@IllusiveBrian being held criminally or civilly liable involves courts. This makes it an action that is not intra-branch. It's a check on the executive branch by both the judicial and the legislative branch. What's being discussed here is something entirely different. You are trying to argue that the job description of some of President's employees is not met by a President. It doesn't have to be. The employees of the executive branch are deputies to a President. The only authority he can delegate to them is the authority which he himself has.– grovkinCommented Jun 24, 2019 at 2:00
Yes, he can.
As the Commander in Chief of the US armed forces, he would be capable of giving orders to the armed forces - including to members of the law enforcement agencies within those armed forces, such as the Military Police.
Said members of the armed forces would have the right to refuse to obey those orders if they were illegal, but if they weren't, then they would be obligated to do so. For instance, it's possible that rather than ordering the US armed forces to kill Osama Bin Laden, President Obama could have ordered them to arrest him instead, and then transport him to a detention facility like the one in Guantanamo Bay.
answered Jun 22, 2019 at 12:56
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It is true president could order military police to arrest a civilian for a reason that has nothing to do with the military, just as it is true that he could order a military police officer to violate any other law. But that doesn't make it legal. @Jesse_b I don't see any support online for the proposition that the duty to disobey unlawful orders exists only for officers. Can you cite any sources for that? What if an MP has an order from the president and an order from his lieutenant that directly contradict each other?– phoogCommented Jun 22, 2019 at 18:10
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18I was in the USAF for twenty years. The enlisted oath is to defend the constitution, and obey the orders of the officers above us. However, we are explicitly told that unlawful orders carry no legal authority. The problem is that the people who decide whether an order is lawful or not are generally the same people who gave the order. Commented Jun 22, 2019 at 18:21
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1would Military Police have jurisdiction? They cannot legally obey an unlawful order. Osama Bin Laden comparison doesn't seem to hold. An enemy combatant is not the same as a US civilian. Maybe he can draft them and then order their arrest? But that's really far out there. It's almost certain that this was not what President Trump meant when he implied that a reporter was afoul of the law.– grovkinCommented Jun 22, 2019 at 20:22
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5@grovkin You'd be amazed how fast somebody can turn combatant when the authorities want to apprehend them. Prevention hinges on a working juridical system (ultimately a working supreme court), a working congress, working media and a vigilant public. None of those can be taken for granted. Commented Jun 24, 2019 at 6:53
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2@grovkin No, I'm pretty sure he meant "combatant", as in "enemy combatant". Commented Jun 24, 2019 at 12:14
This question can be viewed in 2 lights:
1) Can the president legally send you to prison?
or
2) Can the president physically send you to prison?
The answer to the first is a "qualified" no. He cannot send a US Citizen directly to prison (different rules apply for non-citizens) without the due process of lawful arrest (based upon probable cause of a crime), and a fair trial by a jury of one's peers ... neither of which are options he can bypass in his office as President. THAT BEING SAID, he can direct the Justice Department to dig into your life with a fine-toothed comb, look for every unpaid parking ticket, tax form typo, complaints from ex-lovers 20 years ago... and assuming they find something, he can order them to aggressively prosecute such transgressions. It would almost certainly be tacky in the extreme for him to do so, but... well, he doesn't seem to care about that.
The answer to the second is a scary yes... through ultimately illegal or unethical means, declaring you an enemy of the state, declaring martial law, etc. The men in black pick you up and nobody hears from you again. This is why it's super critical that people in positions of power show and practice a deference to the spirit of the law.
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Good answer, but a nit to pick: "preponderance of evidence" is the standard in civil trials (similar to "balance of probabilities" in other common-law jurisdictions). For a criminal trial, the standard is "reasonable doubt."– phoogCommented Dec 6, 2019 at 22:10
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@phoog to be nitpicky about your nitpicking, the 4th Amendment's language is actually "probable cause", and nothing else in the 5th or 6th... for what it's worth :P Commented Dec 6, 2019 at 22:12
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1If indeed you had searches, seizures and/or warrants in mind. Since preponderance of the evidence is the standard by which a trier of fact operates in civil court, and because trying facts and "a fair trial" both fall under due process of law, there was nothing to indicate that you were thinking of anything other than the 5th and 6th amendments. Related trivium: the presumption of innocence is also nowhere to be found in the US constitution, at least not explicitly.– phoogCommented Dec 7, 2019 at 0:51
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@phoog the 4th Amendment is also regarded as the standard for arrest, as I understand it, i.e. the "secure in their persons" portion, that's how I intended it to be conveyed. Upon research, I realize I used the term preponderance of evidence incorrectly and will update it to pure Constitutional language (probable cause). Commented Dec 9, 2019 at 13:59
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Indeed, an arrest is a "seizure" under the fourth amendment (as is even a brief detention for questioning). The edit definitely improves the answer, but since I already upvoted it I can't do it again.– phoogCommented Dec 9, 2019 at 16:33
Not just no... hell no.
The founding fathers were so worked up against bills of attainders, in fact, that they explicitly banned them in the US constitution (I §§ 9.3 and 10.1) in both Federal Law and State Law:
The United States Constitution forbids legislative bills of attainder: in federal law under Article I, Section 9, and in state law under Article I, Section 10. The fact that they were banned even under state law reflects the importance that the framers attached to this issue.
answered Jun 22, 2019 at 9:31
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6The question does not implicate bills of attainder. Those, like all bills, are acts of congress.– phoogCommented Jun 22, 2019 at 18:04
In 1996 John Yoo wrote an influential article in the California Law Review in which he laid out an expansive theory of presidential primacy. According to the abstract of an article critical of Yoo's opinion it
became the legal basis for [...] the claim that neither constitutional protections nor other provisions of domestic and international law constrain treatment of suspected terrorists.
Detaining a photographer would require that the s/he was considered a terrorist or a comparable risk to national security. But as I remarked in a comment, this may happen faster than one thinks, especially in times of perceived national emergencies: Think of labeling investigative journalists traitors and risks to national security.
While Yoo's is currently not a main stream opinion it exerted considerable influence in the decisions of the Bush Jr. administration. Obviously, whether something is legal or not is ultimately decided in court; that such an opinion can be upheld by a legal scholar leaves the possibility open that a court of the future could find a detention legal which we would find illegal today.
answered Jun 25, 2019 at 9:00
A sitting president can have someone sent to jail or prison. One only need look at the Obama/D’Souza case. Dinesh D’Souza is a conservative author and filmmaker who made a movie critical of Obama’s life and presidency.He was prosecuted to the fullest extent by Eric Holder. President Trump pardoned D’Souza.
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14D'Souza pled guilty in 2014 to making an illegal contribution to a US Senate campaign. He never went to jail, only a halfway house, and while there were allegations of the charges being politically-motivated, there's no evidence that Obama himself was involved. Therefore, this answer is incorrect.– F1KrazyCommented Jun 23, 2019 at 11:38