Can a Former President Be Prosecuted for Conduct for which He Was Impeached but not Convicted?

In his remarks defending his decision not to vote to convict Donald Trump in the just-concluded impeachment trial, Senate Majority Leader Mitch McConnell said:

President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run, still liable for everything he did while in office, didn’t get away with anything yet – yet. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.

This raises the question of whether a former President may be criminally prosecuted for the same conduct for which that President had been impeached, but not convicted. As it happens, the Department of Justice Office of Legal Counsel examined that question in 2000 (when Bill Clinton was still President) and concluded that the answer was “yes.”

Here is the memo. Clocking in at 46 pages, it is quite substantial. Here is how the memo begins:

We have been asked to consider whether a former President may be indicted and tried for the same offenses for which he was impeached by the House and acquitted by the Senate.1 In 1973, in a district court filing addressing a rela