There is almost nothing in the words of the Constitution that would support former President Donald J. Trump’s boldest defense against charges that he plotted to overturn the 2020 election: that he is absolutely immune from prosecution for actions he took while was in charge.
A federal appeals court will hear arguments on the issue next week, and the panel will consider factors including history, precedent and separation of powers. But how the Supreme Court recognized thisthe Constitution itself does not explicitly address the existence or scope of presidential immunity.
In his appeal brief, Trump claimed that a constitutional provision was included in the analysis, although his argument is a legal gamble. The layout, the impeachment clausestates that officials impeached by the House and convicted by the Senate are still subject to criminal prosecution.
The provision reads: “Judgment in case of impeachment shall not extend beyond removal from office, and disqualification from holding or enjoying any office of honor, trust, or profit in the United States: but the party convicted shall nevertheless be liable and subject to accusation, trial, judgment and punishment, according to law.”
All the clause says in a nutshell, then, is that “the party convicted” in the Senate can still face criminal prosecution. But Trump said the clause implied something more.
The clause “presupposes that a president who is Not sentenced May Not be subject to criminal prosecution,” Trump’s memo reads.
A friend of the court brief former government officials said Trump’s position had “sweeping and absurd consequences,” noting that many officials are subject to impeachment.
“Under defendant’s interpretation,” the brief reads, “the executive branch would not have the power to prosecute all current and former civilian officials for acts committed in office unless Congress first impeached them and condemned. This would allow countless officials to escape criminal responsibility.”
Trump also made a slightly narrower but still bold argument: “A president acquired by the Senate cannot be prosecuted for acquired conduct.”
Trump was, of course, acquitted at his second impeachment trial, on the charge of inciting insurrection, when 57 senators voted against him, 10 short of the two-thirds majority needed to convict.
The idea that acquittal by impeachment confers immunity from prosecution may surprise some of those who have acquitted.
Take Senator Mitch McConnell, the Republican leader, who voted to accept. Shortly after, a a fiery speech On the Senate floor, he said the legal system could still hold Trump accountable.
“We have a criminal justice system in this country,” McConnell said. “We have a civil dispute. And former presidents are not immune from being held accountable by either.”
That suggests Trump’s reading of the clause is far from obvious, but the Justice Department has said it’s not entirely implausible. In 2000, its Legal Advice Bureau issued a 46-page memorandum dedicated precisely to this question. It was titled “Whether a former president can be indicted and tried for the same crimes for which he was impeached by the House and acquitted by the Senate.”
According to the note prepared by Randolph D. moss, now a federal judge. But, he continued, “despite its initial plausibility, we find this interpretation of the impeachment ruling clause ultimately unconvincing.”
He added: “We are aware of no evidence to suggest that the framers and ratifiers of the Constitution chose the phrase ‘the convicted party’ with a negative implication in mind.”
More fundamentally, the memo states, “impeachment and criminal prosecution serve entirely distinct goals.” Impeachment trials involve political judgments. Criminal trials involve legal ones.
In a brief filed on Saturday, Jack Smith, the special prosecutor, wrote that “acquittal in a Senate impeachment trial may reflect a technical or procedural determination rather than a factual conclusion.” The brief notes that at least 31 of the 43 senators who voted to acquit Trump at the impeachment trial said they did so at least in part because he was no longer in office and therefore not subject to the Senate’s jurisdiction.
Trump’s reading of the provision “would produce incredibly perverse results,” wrote Judge Tanya S. Chutkan, who is overseeing his trial in federal district court in Washington. a decision last month rejecting Mr. Trump’s request for absolute immunity.
He noted that the Constitution allows impeachment for a narrow range of crimes: “treason, bribery, or other high crimes or misdemeanors.”
According to Trump’s reading, Judge Chutkan wrote: “if a president commits a crime that does not fall into that limited category, and therefore cannot be impeached and convicted, the president could never be prosecuted for that crime.”
“Alternatively,” he continued, “if Congress does not have the opportunity to impeach or convict a sitting president – perhaps because the crime occurred near the end of his term, or was covered up until after the president left office – the first Likewise, the president could not be prosecuted.”
He added that the pardon President Gerald R. Ford granted to former President Richard M. Nixon, who resigned as calls grew to impeach him for his role in the Watergate scandal, would not have been necessary under Trump’s reading .
