The U.S. Supreme Court’s decision on July 1 in Trump v. United States continues to reverberate and ricochet quite a bit. Most recently, Sen. Schumer proposed a very strange bill to try to nullify it. As I explain below, Former Speaker Nancy Pelosi already had a chance to nullify it in Former President Trump’s case without any new legislation, but she either bungled it or deliberately assisted Trump.
This case decided on July 1 arose in connection with Trump’s actions in the weeks preceding President Biden’s inauguration. The Court held that some core official actions entitle the former president to absolute immunity, other official actions entitle him to at least a presumption of immunity, and non-official actions entitle the former president to no immunity. I think that the Court should have made clear that such immunity and such presumptions can always be overcome by a Senate conviction for high crimes and misdemeanors. The Constitution is very clear about this:
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.
The Court was correct to say that absence of impeachment (or absence of Senate conviction) does not necessarily get the President off the hook from ordinary prosecution. But the Court should have also said that Senate conviction for high crimes or misdemeanors does necessarily eliminate immunity. If the Court had included a relevant statement like that, then it would have clarified matters, and prevented bogus allegations that the Court had possibly put the president above the law or given the president a license to kill or given him the power of a King or Queen.
Such a statement by SCOTUS would have also put House leaders on notice that, in future, they should promptly send their articles of impeachment over to the Senate, instead of sitting on the articles of impeachment for weeks until the president has already left office. At that late date, the Senate is unlikely to convict, because the Senate only has power to put incumbents on trial (“The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors,” and no one has ever doubted that every impeachment must satisfy those removal conditions). It was reported at the time that Speaker Nancy Pelosi sat on the articles of impeachment for weeks after signing them on January 13, 2021, and thus a Senate trial of an incumbent president became impossible. Acquittal therefore became very likely, and Pelosi‘s delay prevented the Senate from stripping Trump of immunity as regards post-conviction prosecution. Trump still may (or may not) lack full immunity, under the Court’s recent decision regarding the events of January 2021, but the easiest way to guarantee he lacks immunity would have been to secure a Senate conviction. Perhaps Pelosi’s delay was not entirely accidental, in that she immediately realized there was plenty of blame to go around for the events of January 6. In any event, she had a window of opportunity to defeat any immunity claim by Trump, and she missed that window.
At this blog, Professor Rappaport recently criticized the Court’s opinion in this case as an “originalist disaster.” But Professor Rappaport also views the concurring opinion of Justice Barrett as “far superior to the majority’s.”
The majority opinion by Chief Justice Roberts did recite the Impeachment Clause blockquoted above, but only for purposes of explaining why it did not necessarily get Trump off the hook (i.e. without explaining why it could have been used to keep him on the hook). The only other opinion in the case that recited that clause was Justice Sotomayor’s. Good for her. Unfortunately, she interpreted the words “the party convicted” by the Senate to include a party who “could have been convicted” by the Senate. Obviously, the clause blockquoted above says “convicted” rather than “could have been convicted,” and so Sotomayor is guilty of overstretching the Constitution’s words. A former president who has never been convicted by the Senate (but could have been) may indeed be amenable sometimes to ordinary prosecution, but not because of the impeachment clause blockquoted above.
Posted at 8:21 AM