The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In his remarks defending his decision not to vote to convict Donald Trump in the just-concluded impeachment trial, Senate Majority Leader Mitch McConnell said:
President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run, still liable for everything he did while in office, didn't get away with anything yet – yet. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.
This raises the question of whether a former President may be criminally prosecuted for the same conduct for which that President had been impeached, but not convicted. As it happens, the Department of Justice Office of Legal Counsel examined that question in 2000 (when Bill Clinton was still President) and concluded that the answer was "yes."
Here is the memo. Clocking in at 46 pages, it is quite substantial. Here is how the memo begins:
We have been asked to consider whether a former President may be indicted and tried for the same offenses for which he was impeached by the House and acquitted by the Senate.1 In 1973, in a district court filing addressing a related question in the criminal tax evasion investigation of Vice President Agnew, the Department took the position that acquittal by the Senate creates no bar to criminal prosecution. A 1973 Office of Legal Counsel (" OLC" ) memorandum discussing the same question adopted the same position. As far as we are aware, no court has ever ruled on this precise issue. During the impeachment of Judge Alcee Hastings in the late 1980s, though, a district court and both the House and Senate passed on the related question whether an acquittal in a criminal prosecution should bar an impeachment trial for the same offenses. Each of those bodies concluded that the Constitution permits an official to be tried by the Senate for offenses of which he has been acquitted in the courts. Although we recognize that there are reasonable arguments for the opposing view, on balance, and largely for some of the same structural reasons identified in the United States's filing in the Agnew case and the 1973 OLC memorandum, we think the better view is that a former President may be prosecuted for crimes of which he was acquitted by the Senate. Our conclusion concerning the constitutional permissibility of indictment and trial following a Senate acquittal is of course distinct from the question whether an indictment should be brought in any particular case.
Here is the conclusion:
We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.
As the length of this memorandum indicates, we think the question is more complicated than it might first appear. In particular, we think that there is a reasonable argument that the Impeachment Judgment Clause should be read to bar prosecutions following acquittal by the Senate and that disqualification from federal office upon conviction by the Senate bears some of the markers of criminal punishment. Nonetheless, we think our conclusion accords with the text of the Constitution, reflects the founders' understanding of the new process of impeachment they were creating, fits the Senate's understanding of its role as the impeachment tribunal, and makes for a sensible and fair system of responding to the misdeeds of federal officials.
Whether the full course of the President's conduct as it relates to the January 6 Capitol riot could meet the standard for incitement set by Brandendurg is a close question. As I discussed on the Smerconish show this past Saturday, the case that Trump committed incitement on January 6 is far stronger than the claim he incited violence at a 2016 campaign rally for which he was sued civilly (unsuccessfully).
While I suspect a civil suit related to the January 6 events would be possible, it would be more difficult to make a criminal prosecution stick, and I suspect that is among the reasons an indictment is unlikely. If Trump is not prosecuted, however, it will not be because it is unconstitutional to do so.