The President of the United States of America is an office held by only 44 people over the last 200 and change years (Cleveland gets counted twice). It is often considered the most powerful position in the world. While on paper, it is only specifically the head of the executive branch of government, it is the de facto leader of the nation and (historically) the “free world.” The president enjoys a great many powers thanks to the U.S. Constitution. However, recent events have the country and the world wondering the same thing. Is the President above the law? The most accurate answer at the moment is “it depends.”

What Is a President?

The President is the chief enforcer of the law. It is for this reason that President Nixon put forth the idea that the President is incapable of breaking the law. This is not as far-fetched as it may initially seem. The Constitution does give the President wiggle room to do an otherwise unlawful thing in the course of their duties. Similar protections exist for law enforcement at the community level as well. That is how Nixon got to his conclusion that “When the President does it, that means it’s not illegal.”

Can The President Be Prosecuted?

The jury is still out. Whether you agree that the President can’t commit a crime or not, the power of prosecution stops with the President. We currently don’t know if a President can pardon themselves of previous crimes. A lot of this is new territory, at least when it comes to criminal proceedings.

Law vs. Politics

While the President may have a strong shield from criminal law, they are not as untouchable as they may seem. Impeachment is the more likely recourse to take against an offending President. Once they are kicked out of office they become a regular citizen again and can potentially be prosecuted then. The problem is that impeachment is a political act. On the one hand, that means that an actual criminal act is not necessarily required to remove a President from office. On the other hand, that means that if there isn’t sufficient political motivation to do so, a President could break the law and remain in office. It comes down to the will of those in control of the majority of Congress. That is why the most accurate answer to the question “Is the President above the law?” is that it depends.

It Would Never Get that Far

Whether or not a president is susceptible to criminal prosecution is effectively a moot point. If the waters ever got hot enough, a sitting President could always just resign and have their Vice-President pardon them. This even happened with Ford pardoning Nixon. Many of the situations not directly mentioned in the Constitution have come down to tradition and an honor system of sorts. As we currently have a President who seems to feel less beholden to either of those things, gaps in our federal law are being exposed. It will be interesting to see if Congress attempts to close any of these gaps, considering how difficult it is to change constitutional law. What benefits one party during one cycle could be disastrous for them in the next. Only time will tell.