by Noah Feldman
Should former president Donald Trump be immune from federal criminal prosecution for his conduct in the run-up to Jan. 6? He’s argued both that his position as president should make him immune from prosecution and that because the Senate did not convict him after he was impeached, criminal charges would amount to a kind of double jeopardy. A federal district court has already thrown out those arguments. The special counsel, Jack Smith, has now asked the Supreme Court to fast track a decision.
It would be unusual but not unheard of for the justices to decide the issue before the court of appeals has ruled. But the high court should agree to decide the case now — and rule quickly that no such immunity exists under the Constitution.
The legal questions in this case aren’t close calls. The president is not above the law. Impeachment is not a criminal trial that would preclude subsequent prosecution. And Trump isn’t even in office, so there is no risk that his trial would disrupt the functioning of government.
The Supreme Court long ago ruled, in Clinton v. Jones, that even a sitting president may be subject to civil suits for conduct committed before entering office. The core principle underlying the court’s decision to let Paula Jones sue Bill Clinton is that the president is not above the law. He is not a king but a citizen like any other. Even a delay in Jones’s case until Clinton left office, the court ruled, would deny her justice.
The same principle of legal accountability applies even more strongly to criminal conduct. When a president commits crimes, it’s not just one injured party who has an interest in seeing justice done. It’s all of us. Federal crimes are, legally and morally, crimes against the United States.
The fact that Trump’s alleged crimes were committed while he was president is also no reason to grant him immunity. Quite the contrary. The president is required by the Constitution to take care that the laws be faithfully executed. Any criminal act committed by a president is necessarily a violation of his oath of office, committed outside the legal bounds of his authority. Put another way, if the president is committing a crime, he isn’t, by definition, acting within his authority as president. He’s acting outside that authority, beyond the scope of his powers.
Trump has also argued that his impeachment, followed by the Senate’s failure to convict him, is an independent reason for immunity. This argument is also obviously faulty.
An impeachment isn’t a criminal trial. It’s a unique constitutional tool for removing a president from office. If a president is convicted after impeachment, he doesn’t go to prison. He simply loses his job. And if an impeached president isn’t removed, he hasn’t been acquitted like a defendant found not guilty by a unanimous jury. He just hasn’t met the high bar — a two-thirds vote in the Senate — for removal from office. So Trump cannot claim that a criminal trial now would subject him to double jeopardy.
In any case, it makes no constitutional sense that an impeachment, a political process effectuated in Congress, would block a judicial process, which takes place in the courts. The legislature and judiciary are separate and coequal branches of government.
So the big question is the timing. The court could agree to consider the issue expeditiously, allowing the trial to begin on time in March 2024. Or the justices could say the question must wait, in which case Trump might be able to delay the proceedings until the height of the presidential campaign or even after the election. This would be a way for justices to help Trump without saying anything in his favor.
Time is of the essence. Trump’s goal is to thwart justice by delaying the trial as long as he can. If he wins and is inaugurated, he can almost certainly dismiss the charges against himself. (Yes, I said “almost.” That’s for another column.) In general, it’s good for the Supreme Court to wait for the courts of appeals to rule before the justices weigh in — the idea is that the higher court benefits from the wisdom of lower courts’ arguments. But in recent years, the court has preempted the appellate courts some 19 times. This case is more important than any of those.
If the justices let Trump delay, they will be doing a disservice to the rule of law. That’s something they all say they care about. Here’s a chance for them to prove it.
