Maurice A. Deane School of Law at Hofstra University Scholarly Commons at Hofstra Law Hofstra Law Faculty Scholarship 1992 The Law as King and the King as Law: Is a President Immune from Criminal Prosecution Before Impeachment? Eric M. Freedman Maurice A. Deane School of Law at Hofstra University Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship Recommended Citation Eric M. Freedman, The Law as King and the King as Law: Is a President Immune from Criminal Prosecution Before Impeachment?, 20 Hastings Const. L.Q. 7 (1992) Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/449 This Article is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Faculty Scholarship by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact
[email protected]. The Law as King and the King as Law: Is a President Immune from Criminal Prosecution Before Impeachment? By ERIC M. FREEDMAN* Table of Contents Introduction ................................................... 8 I. The Original Intents ................................. 15 II. The Historical Practice ............................... 22 A. The Federal Executive Branch ......................... 22 B. The Federal Judicial and Legislative Branches .......... 24 1. The Federal Judicial Branch ....................... 25 2. The Federal Legislative Branch ..................... 30 C. Federal Prosecution of State and Local Officials ......... 33 D. State-Level Practice ................................... 37 III. Theoretical Considerations ........................... 39 A. The Dual Nature of the Impeachment Clause .......... 41 B. The Rule of Law ...................................... 46 1. Civil Immunity .................................... 46 * Assistant Professor of Law, Hofstra University School of Law. J.D. 1979, B.A.