The Alarming Implications of Trump’s Immunity Claim
When Congress impeaches and removes a federal official, the Constitution says, “the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” While you might think that clause means impeachment and removal do not preclude criminal prosecution, Donald Trump’s lawyers say it means a former president can be prosecuted for abusing his powers only after he is impeached and removed.
That is the improbable crux of the argument that the U.S. Supreme Court will consider on Thursday in the federal case that charges Trump with illegally trying to remain in office after he lost the 2020 presidential election. If the Court accepts Trump’s claim that he “enjoys absolute immunity from criminal prosecution for his official acts,” it will be endorsing the proposition that presidents can escape accountability for crimes, no matter how egregious, provided they avoid conviction in the Senate based on the same conduct.
One way for a president to forestall that result is to commit crimes toward the end of his term in office. Trump, for example, was impeached for inciting the 2021 Capitol riot, but he was no longer president by the time the Senate weighed the case against him.
Many Republicans—including Majority Leader Mitch McConnell (R–Ky.), who had castigated Trump for his reckless behavior before and during the riot—argued that it was not proper for the Senate to try a former president. Explaining his vote to acquit Trump, McConnell noted that the former president could still be held civilly or criminally liable for his role in the violent assault that interrupted congressional ratification of Joe Biden’s victory.
“We have a criminal justice system in this country,” McConnell said. “We have civil litigation. And former presidents are not immune from being held accountable by either one.”
Trump’s lawyers say McConnell was wrong about that. Their argument also implies that Richard Nixon was wrong to worry that he might face criminal prosecution after resigning from office amid the Watergate scandal.
Nixon resigned after articles of impeachment wer
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