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Former President Donald Trump’s legal team has filed briefs with the D.C. Court of Appeals, which will hear oral argument in the federal insurrection case on January 9, claiming to find presidential immunity from criminal prosecution in the Impeachment Clause of the Constitution. Trump’s lawyers have advanced two arguments, each of which tortures the language of the Impeachment Clause, distorts the history and purposes surrounding the provision, and draws baseless inferences from the Framers’ careful steps to construct a power to protect the nation from presidential abuse of power and threats to republican principles and values.
The Impeachment Clause (Article I, Section 3, Clause 7) states: “Judgment in Cases of Impeachment shall not extend further than to removal . . . and disqualification to hold and enjoy any Office . . .but the Party convicted shall nevertheless be liable . . . to Indictment . . . and Punishment, according to Law.”
Trump contends, first, that “no president, current or former may be criminally prosecuted for his official acts unless he is first impeached and convicted by the Senate.”
Trump’s second argument asserts, “Nor may a president face criminal prosecution based on conduct for which he was acquitted by the U.S. Senate.”
Trump’s first argument, that impeachment must precede indictment lacks historical support, distorts textual language and ignores the Framers’ decision to sever the impeachment process from the criminal justice system. The language— “shall nevertheless be liable”—aims to preserve criminal liability rather than to qualify it. There is no basis in the records of the Constitutional Convention to attribute to the Framers any intention to insulate civil officers from criminal liability through election or appointment to office. A civil officer may be both impeached and criminally punished without any consideration of the Impeachment Clause. Like all other citizens, they are subject to the law.
There is no evidence from Convention debates to suggest that the president is clothed with immunity. Indeed, the immunity granted to members of Congress (Article I, Section 6)—privilege from arrest during their attendance in congress, except in cases of treason, felony and breach of the peace—was intentionally withheld from the president. Charles Pinckney of South Carolina, a robust participant in the Convention, told the Senate in 1800 that “No privilege of this kind was intended for your Executive.” James Iredell, a member of the first Supreme Court, told the North Carolina Ratifying Convention that the president is “triable.” James Wilson, second in importance only to James Madison as an architect of the Constitution, stated, “not a single privilege is annexed” to the president’s character. He emphasized: “The most powerful magistrates should be amenable to the law. . . No one should be secure while he violates the constitution and the laws.”
It follows from the fact that the president is criminally liable that a former president is as well. There certainly is no provision in the Constitution that addresses a special exemption from trial for an ex-president. Trump’s assertion that impeachment must precede indictment falls flat, for it would reduce the clause to mere verbiage.
A focus on the language is important because the Framers were meticulous draftsman. They did not insert in the Impeachment Clause the words such as “after” or “afterward,” to convey a sequential process. To transform a nonsequential provision into a prescribed process, as Trump’s lawyers do, is to create the very presidential immunity that was withheld from the president when the Framers directly confronted the question.
The sole purpose of the Article I, Section 3 indictment provision, as Justice Joseph Story observed nearly 200 years ago, is “to preclude the argument that the doctrine of double jeopardy saves the offender from the second trial.” The Framers recognized that very danger in English practice, which fused criminal punishment and removal in one proceeding, and so they sought to prevent an inference that impeachment prevents a subsequent indictment. In place of the combined English removal and criminal proceedings, the Framers divorced the two, with consequences that Wilson addressed.
“Impeachments,” Wilson said, are outside the “sphere of ordinary,” that is, criminal jurisprudence. “They are founded on different principles, governed by different maxims, and directed to different objects.” He added, “for this reason, the trial and punishment of an offense on impeachment, is no bar to a trial of the same offense at common law.”
This crystal-clear historical purpose, severing the political process of impeachment from the values and principles of the criminal justice system, however, has not stopped Trump, in his second argument, from invoking the double-jeopardy defense.
Let us understand the revolutionary consequences of Trump’s second argument, that a president “may not face prosecution based on conduct for which he was acquitted by the U.S. Senate.” First, this assertion means that the Senate would replace the criminal justice system—prosecutors, grand juries and indictments—in deciding whether a president should face prosecution. Senate refusal to convict a president in an impeachment trial would bar prosecution, perhaps for the most extreme partisan reasons. Second, impeachment by the House, followed by acquittal in the Senate, would confer upon the president permanent immunity from criminal prosecution, however clear his guilt. The president would stand above the law and the rule of law would be rendered irrelevant.