Footnote 2: Implicit in the Department’s constitutional analysis of this question in 1973 was the assumption that the President would oppose an attempt to subject him to indictment or prosecution. We proceed on the same assumption today and therefore do not inquire whether it would be constitutional to indict or try the President with his consent.
The Department’s previous analysis also focused exclusively on federal rather than state prosecution of a sitting President. We proceed on this assumption as well, and thus we do not consider any additional constitutional concerns that may be implicated by state Criminal prosecution of a sitting President. See Clinton v. Jones, 520 U.S. 681, 691
(1997) (noting that a state criminal prosecution of a sitting President would raise “federalism and comity” concerns rather than separation of powers concerns).