This article uses the rich history of British common law, Parliamentary action, and colonial prosecutions to explore how the Founders would have answered this question: Can a sitting president can be prosecuted for crimes in courts of law or must he be first removed from office? In so doing, it takes a slightly different approach to impeachment than other scholars have taken. It proposes that the Founders would have considered this matter as raising a jurisdictional question involving the power of courts o f law, on the one hand, and the power of Congress, acting as the national grand jury and as a court o f impeachment, on the other. They also would not have provided us with a firm "yes" or "no" answer. Instead, they would have begun by stating that they gave the power of removal of a sitting President solely to Congress and that the power to modify his powers rests with the People, writ large. And so, they would have asked whether the proposed prosecution risks removal of a President from office, either in fact (e.g., by incarceration) or de facto (e.g., by substantially interfering with or modifying his exercise of his Constitutional duties or the discretion given to him under that document). I propose that the Founders would say that in any case in which a potential result of prosecutorial action is incarceration or restraint in the freedom to exercise presidential duties that do not merely ministerial supervision, courts of law cannot enforce the prosecution until he is removed from office by impeachment or otherwise. But that leaves a few cases in which the invasion may not be as severe. I use history to defend the characterization of this impeachment question as jurisdictional. The Founders would have known that courts of common law and Parliament shared jurisdiction over prosecuting crimes. They knew that the grand juries of the American colonies also theoretically had the power to prosecute royally-appointed chief-executives. But they also knew that colonial grand jury power was an empty right, because royal authorities regularly thwarted it. They also would have known that the colonies lacked the power to impeach (and thus, to remove) royally-appointed colonial leaders. Moreover, the Founders certainly knew that, after the Declaration of Independence, several state constitutions allowed the prosecution of a sitting Chief Magistrate and either gave prosecutorial authority to legislatures or split jurisdiction over crimes by high officials between legislatures and courts of law. Thus, they would have been familiar with the theoretical possibility of prosecuting a President and would certainly have assumed it possible. However, given the impracticability of such a prosecution, they would have deemed impeachment a particularly important right to secure in their written Constitution. The Founders understood impeachment as a criminal proceeding. A long history of denials of due process raised their concerns about fairness in that context. They also understood that impeachment had political implications. They knew it had been used for political retribution in England. These problems vexed their consideration of impeachment. Their solution was jurisdictional. They split responsibility for enforcing compliance and assessing the punishment for an errant President. Under their scheme, Congress has the power to investigate and remove if necessary. On the other hand, courts of law have jurisdiction to enforce prosecutorial actions that do not pose a risk of removal and also, prosecutions after Congress has removed a convicted person from office. And in order to avoid double jeopardy, they also provided that the Senate acting as the High Court of Impeachment, could only deliver punishments that did not involve risks to life and limb. The Founders would tell us that, under the model they crafted, prosecutors with statutory authority still can investigate crimes alleged to have been committed by a sitting president. Indeed, they must, in order to determine the nature and extent of alleged presidential involvement. However, they lack the ability to compel presidential cooperation if a President is unwilling. They cannot jail a President for contempt. Such actions would effect a removal, a responsibility that, the Founders intended to place solely within the province of Congress. Moreover, they would say that the President can fire prosecutors without violating statutory rules for obstruction of justice. Even if the President uses constitutionally-delegated powers with the sole motive of foiling a prosecution, the response is impeachment proceedings to deprive him of these powers and to protect the nation's interest in the presidency. The Founders would also say that a prosecutor has a duty to exercise prosecutorial discretion in deciding whether to proceed against a sitting President through a court of law. The Founders would have noted that, because courts of impeachment have superior jurisdiction over matters within their concern, articles of impeachment issued by the House of Representatives are an assertion of jurisdiction over the case. Properly issued, they will automatically stay any other pending federal criminal proceeding regarding the same person and conduct, including the work of a federal grand jury. The Founders would tell us that if a President is convicted by a court of impeachment, he cannot be subsequently prosecuted for obstruction of justice with respect to acts that were, at the time they were undertaken, delegated to him under the Constitution, even if that behavior technically meets the language of a criminal obstruction of justice statute. The penalty for the misuse of an otherwise legitimate power in order to prevent a prosecution, is removal from office. However, the President can be prosecuted for the underlying crime, the investigation of which he was attempting to obstruct. And his obstruction could be the basis of conspiracy charges, if done intentionally to faciliate the misconduct of others. Finally, the Founders would tell us that, because federal courts have concurrent jurisdiction with Congress over the potential subjects of impeachment, a federal court has the power to consider peripheral questions regarding enforcement of prosecutorial action. It has the power to stay or delay a prosecution in a court of law for good cause shown. (It could not delay a constitutionally-conducted impeachment.) This article does not delve into what "good cause," might mean, but without doubt such a case would be presented by a reasonable threat that the prosecution would interfere with Presidential duties so as to constitute a constructive partial or full removal. A federal court also has the power to condition a request for the delay of a proceeding upon the waiver of any affirmative defenses that would otherwise bar a later prosecution and to take action that is not compulsive of the President to preserve documentary evidence. However, if a President still refuses to heed a court order requiring him to act or refrain from acting, once again, the power to enforce that order falls to Congress through impeachment proceedings. [ABSTRACT FROM AUTHOR]