At Volokh Conspiracy, Robert Leider, guest blogging: Sources of Presidential Immunity. From the introduction:
On Thursday, the Supreme Court heard arguments in Trump v. United States, which concerned whether presidents have criminal "immunity" for their official acts while in office. Some arguments seemed perplexing. Trump's counsel, for example, argued that a prosecutor could charge private acts, but not official acts. So if a president accepted a bribe to appoint an ambassador, prosecutors could charge the bribe (which he declared a private act) but not the appointment, which he classified as an official act. Official acts, in his view, could only be the subject of criminal charges if there was first an impeachment and conviction, followed by a prosecution under a criminal statute that explicitly mentions the president.
The Court struggled with these arguments, and many others. In large part, I think these struggles occurred because "immunity" is not a good way to describe when a president may not be prosecuted. In this post, I want to lay out what I believe to be the exceptions to when a president may be prosecuted in the same manner as a private citizen. This post comes with the caveat that this is not my usual academic area, and I do not have a high degree of confidence that what I framed here is complete and correct. But at the very least, I think it is a better starting place than the all-encompassing term "immunity."
Agreed. Immunity is the wrong way to think about the issue because the Constitution doesn't provide for immunity. That doesn't necessarily mean the President loses.
Also, I'm not sure if I've expressed strongly enough my disagreement with Trump's counsel's argument that (as Professor Leiden puts it above) "Official acts … could only be the subject of criminal charges if there was first an impeachment and conviction…" So I'll do it here. This argument is entirely unpersuasive, first because that's not what the Constitution says. Article I, Section 3 (the only arguably relevant provision) says that "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification" from office, but then adds: "but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law" (emphasis added). This provision is saying that, even after a conviction and punishment by the Senate, an impeached party can still be prosecuted separately under criminal law. That is, the impeachment conviction and punishment is not a double jeopardy bar to the subsequent prosecution (hence the "nevertheless"). To get where Trump's counsel wants to go, the paragraph would need to say "and [not but] the Party convicted shall thereafter be liable…" The "but … nevertheless" completely destroys his argument.
And second, as I (and also Trump) argued at the time of Trump's second impeachment, a former President cannot be impeached and convicted. The Constitution, Article II Section 4, says "The President … shall be removed from office on Impeachment for, and Conviction of" the listed acts. Thus impeachment applies only to current Presidents, not former Presidents (who are not "The President"). Article I, Section 3 (quoted above) backs this up by saying that punishment on conviction after impeachment "shall not extend further than to removal from Office, and [not "or"] disqualification." If that's right, though, Trump's argument in the present case makes no sense, because it would shield a former President from prosecution for wrongdoing discovered after the President left office.
Posted at 6:07 AM