1

In USA there is this concept or "rule of law" that includes the principle that no one is above the law.

About this the book "A Companion to the US Constitution and Its Amendments" (by John R. Vile) says on page 80

...American officers, like the president himself, pledge first and foremost to uphold the Constitution of the United States. In this way, they affirm that the rule of law is superior to the rule of a human leader.

Now there is this case, as reported by NBC, where the New York State Supreme Court Justice has ordered the president to answer questions under oath for a civil suit in the Bronx involving his security guards.

Considering a situation where the president would not provide any answer to the questions, or provided some flippant answer, would the judge have the authority to throw the president in jail for contempt of court?

4

Clinton v Jones established that a sitting US President does not have immunity from civil law suits in a Federal court.

However, the Supremacy Clause of the US Constitution prohibits states from interfering with the Federal government's exercise of its constitutional powers. Under this power given to the Federal government, the executive branch can simply wave away any state judge's decision to hold a President.

If this were not the case, any judge from the south could have demanded an imprisonment of then-President Lincoln under some trumped up charge.

EDIT: after reading the answer linked in Fizz's comment, it appears that this interpretation of the Supremacy Clause comes from 1819 case of McCulloch v. Maryland.

-3

Yes... probably.

Contempt of court is an oddity in the legal system. In the US there is both civil and criminal contempt. It seems likely that the general principle that the President should not face criminal prosecution while he or she remains as President would apply to criminal contempt. The President could be removed (at an election, at the end of their term or by impeachment) at which point the case for criminal contempt could proceed.

Civil contempt is when a judge holds a person in contempt, and decides on some civil restitution. This is what is usually meant when people talk about being thrown in jail when held in contempt. This could happen, for example, when a defendant loses their temper and starts abusing the judge, jury or others present in the court. The judge holds the person in contempt and asks the sheriff to put them in a cell until they have cooled off. This is seen a civil restitution, rather than a criminal punishment, and I see no special reason why a president should hold immunity from this. Unlike a criminal contempt, any person who has been thrown in jail following a civil contempt can leave jail simply by agreeing to comply with the court. The president would not need to exercise their power of pardon to get out of jail.

In practice this is rather unlikely. Presidents know the law, and know their way around the legal system. They know enough to be able to frustrate the court without crossing the boundary into contempt.

  • Isn't it the case that "the general principle that the President should not face criminal prosecution" is an internal policy of the Justice Dept rather than statute or common law? In that case, rule 42(a)(2) of the Federal Rules of Criminal Procedure would seem to imply that the judge could appoint a private prosecutor, and 42(b) would allow punishment for criminal contempt without any involvement by the Justice Dept. – Peter Taylor Sep 21 at 7:51
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    And "Presidents know the law" would be more accurately stated as "Presidents have access to people who know the law". They weren't all lawyers before they became politicians. – Peter Taylor Sep 21 at 7:54
  • That the President should not face criminal charges while in office seems to be the developing consensus. It is not based on any statute or common law, except the ability of the President to grant pardons to anyone (there is nothing in the constitution that says the President can't pardon himself/herself). – James K Sep 21 at 11:12
  • I agree with the second comment that presidents have access to people that know the law, but most Presidents were politicians/generals/businesspeople before becoming President: such people have worked and understand a framework of law better than regular Joes, and much better than many who find themselves in the criminal legal system. – James K Sep 21 at 11:12
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    @JamesK: Of course, the President can only pardon federal crimes, and this is a state court we're talking about. OTOH, the court might well decide to "use its discretion" and not charge him anyway. – Kevin Sep 21 at 16:32

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