If Congress’s Power to Criminalize Official Executive Acts Is Limited, That Is a Prohibition on Prosecution

I agree with Charlie that it “becomes horribly semantic” to draw a meaningful distinction between (a) immunity from prosecution and (b) whatever we want to call separation-of-powers bars against prosecution that have exactly the same effect as immunity. I also agree with his thoughtful explanation of why it’s not just a semantic difference; for the reasons I elaborated on here, I am sympathetic to the conviction that we should resist conferring on presidents and former presidents something we unreservedly call “immunity from prosecution.”

Former president Trump’s insistence that our government cannot function absent acknowledgment of presidential immunity is belied by its functioning for nearly a quarter-millennium prior to Trump’s claim — and for nearly two centuries before the Supreme Court recognized immunity from civil suits in Nixon v. Fitzgerald (1982).

About the Author

Andrew C. McCarthy

Andrew C. McCarthy is a senior fellow at National Review Institute, an NR contributing editor, and author of Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency.

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I agree with Charlie that it “becomes horribly semantic” to draw a meaningful distinction between (a) immunity from prosecution and (b) whatever we want to call separation-of-powers bars against prosecution that have exactly the same effect as immunity. I also agree with his thoughtful explanation of why it’s not just a semantic difference; for the reasons I elaborated on here, I am sympathetic to the conviction that we should resist conferring on presidents and former presidents something we unreservedly call “immunity from prosecution.”

Former president Trump’s insistence that our government cannot function absent acknowledgment of presidential immunity is belied by its functioning for nearly a quarter-millennium prior to Trump’s claim — and for nearly two centuries before the Supreme Court recognized immunity from civil suits in Nixon v. Fitzgerald (1982).

About the Author

Andrew C. McCarthy

Andrew C. McCarthy is a senior fellow at National Review Institute, an NR contributing editor, and author of Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency.