I haven’t previously written about special counsel Jack Smith’s criminal prosecution of former president Donald Trump, but have instead left it to former federal prosecutors like National Review’s Andy McCarthy to explain the intricacies. But now that the Supreme Court has granted review of Trump’s claim that former presidents have absolute immunity from criminal prosecution for their official acts as president, I figure I should dive into this question. I offer here a few tentative observations, which I am open to being persuaded are mistaken:
1. I start off very skeptical of the claim that former presidents have absolute immunity from criminal prosecution for their official acts as president. The Punishment for Impeachment Clause of the Constitution (Article I, section 3, clause 7) explicitly provides that while the penalty for an impeachment conviction “shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States,” an individual who has been impeached and convicted “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law”:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
In other words, a former president who has been removed from office by impeachment and conviction clearly is not immune from criminal prosecution for the same official acts for which he was impeached. The penalties he has incurred as a result of his impeachment conviction do not displace and prevent ordinary criminal penalties. So doesn’t that imply that any other former president would also be subject to those ordinary criminal penalties?
Assume that a sitting president in the last few hours or minutes of his presidential term commits a crime. It’s too late for the House to convene to impeach him before his term expires. It’s not clear that the House has any authority to impeach him after he has left office, and in any event the House might see little reason to bother to do so. Does he therefore escape scot-free from criminal punishment? That seems absurd.
To take another example: What if the president’s crime in office is discovered only after he has left office? Why should the fact that he was not impeached and convicted prevent criminal prosecution?
Trump’s answer is that the Punishment for Impeachment Clause “specifically authorizes the criminal prosecution of a [former] President, but only after the crucial structural check of impeachment and conviction.” (Trump’s italics, my underlining.) In other words, recognizing impeachment and conviction as a prerequisite to criminal prosecution serves an essential role in preventing abusive criminal prosecutions of a former president. With respect to my examples, I suppose that Trump could argue (and perhaps already has) that the fact that the penalty for an impeachment conviction can include not only removal from office but also disqualification to hold any office in the future means that both impeachment and conviction can take place after a president has left office.
In these highly polarized times, the threat of abusive criminal prosecutions of former presidents seems greater than ever—who knows what Joe Biden might face if Trump wins this November’s election?—so Trump’s notion of prior impeachment and conviction as a “crucial structural check” on criminal prosecution has some appeal. But the Punishment for Impeachment Clause seems much less to authorize the criminal prosecution of former officers than to preserve a pre-existing authority. It has, I gather, been a common practice to convict on criminal charges first and to pursue the impeachment process later. According to the Library of Congress:
Those who have been impeached and removed from office are still subject to criminal prosecutions for the same underlying factual matters, and individuals who have already been convicted of crimes may be impeached for the same underlying behavior later. A number of federal judges, in fact, have been indicted and convicted for conduct which has formed the basis for a subsequent impeachment proceeding.
So the notion that an impeachment conviction must precede a criminal prosecution is contrary to that practice. Plus, given how difficult it would be, especially in a highly partisan political climate, ever to obtain the two-thirds vote in the Senate needed for conviction of a president or former president, a rule that an impeachment conviction must precede a criminal prosecution could invite all sorts of criminal acts by, say, a rogue president who has lost a re-election bid or who is finishing up a second term.
2. In Nixon v. Fitzgerald (1982), the Supreme Court held that a former president is entitled to absolute immunity from damages liability predicated on his “official acts”—defined as all acts within the “outer perimeter” of his official responsibility. Trump argues that this absolute immunity from civil liability should extend to criminal liability.
But as Smith argues, the competing considerations in the context of criminal prosecutions are arguably quite different:
In contrast to the unchecked potential for myriad suits from private citizens who feel aggrieved by Presidential action, federal criminal prosecutions are conducted by the Executive Branch itself, under the supervision of the Attorney General acting through professional prosecutors appointed to assist him in the discharge of his duties. [Cleaned up.]
I recognize, of course, that many Trump supporters would scoff at this distinction and would cite Smith’s own prosecution as disproof of its force. But might the Court itself be obligated, as Smith puts it, to afford the executive branch “a presumption of regularity”? And is there really reason to fear that the threat of federal criminal prosecution will chill future presidents from carrying out their duties in a responsible manner? Or is that threat so random in its operation and so contingent on who wins the next election that a president wouldn’t factor into his considerations?
3. Trump argues that all of the alleged conduct that underlies the criminal charges against him falls within the scope of “official acts” as defined in Nixon v. Fitzgerald. But I am dubious of his position. As the D.C. Circuit panel suggested in a footnote (without deciding the question), it seems that Trump was acting much more in his capacity as a candidate trying to win (or, according to the allegations, steal) an election than as president. What business, after all, is it of a president to concern himself with the predominantly state-law matter of who has won a state’s electoral votes or with how the Vice President and members of Congress certify the electoral vote?
It’s unclear to me from the Court’s rather oddly worded order whether the Court will address this matter. The question that the Court has directed the parties to address is:
Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.
It’s not special counsel Smith who is alleging that Trump’s conduct “involve[s] official acts.” That’s Trump’s allegation. Surely a former president wouldn’t obtain immunity from criminal charges simply by alleging that the charged conduct involves official acts. So perhaps the Court is open to taking a harder look at whether the charged conduct actually or plausibly involves official acts.
(Harvard law professor Jack Goldsmith, who anticipated that a large flaw in the D.C. Circuit’s opinion would lead the Court to grant review, speculates in a tweet thread that the question the Court crafted suggests that the Court might be looking for a way to confer immunity on a subset of official acts.)