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Can a sitting president be indicted? W. Burlette Carter approaches this question from a historical perspective in her forthcoming article Can a Sitting President be Federally Prosecuted? The Founders Answer. Carter asserts that the Founder’s answer would be one based on jurisdiction:
The Founders would have recognized that, before the formal issuance of Articles of Impeachment, courts of law have the power to stay their own proceedings against a President for good cause, just as English/British common law courts with concurrent jurisdiction always could. And they would have have accepted that courts of law can, in the first instance, decide evidentiary issues such as executive privilege for matters proceeding in their fora. Again, despite Parliamentary power over impeachment, common law courts had long done so in England and Great Britain, so long as they otherwise had jurisdiction.
For an in-depth examination of the British and early American view on jurisdiction to prosecute the president, follow the link above.
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