The Volokh Conspiracy
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Former Presidents Do Not Enjoy Blanket Criminal Immunity
So says the DC Circuit Court
The D.C. Circuit Court's opinion in US v. Donald Trump on whether the former president enjoys a blanket immunity from criminal prosecution for his actions while president is now out. It can be found here.
It is a comprehensive opinion, and I think a correct one. Given my own scholarly interests, I was particularly anxious about how the court might handle the claim that an officer who has been acquitted in an impeachment trial cannot be criminally prosecuted, but I think the panel handled that issue correctly.
Interestingly, the panel went with the distinction in Marbury v. Madison between discretionary and ministerial acts and concludes that discretionary acts are largely outside the purview of the courts. But acts that violate a constitutionally valid criminal law also violate the president's legal duties and thus cannot be understood to be purely discretionary acts within the constitutional and legal authority of the president to make.
The cases following Marbury confirm that we may review the President's actions when he is bound by law, including by federal criminal statutes. In Little v. Barreme, the Supreme Court concluded that the President's order to a subordinate officer to seize American ships traveling to or from French ports violated the Nonintercourse Act precisely because the Congress had acted to constrain the Executive's discretion. 6 U.S. (2 Cranch) 170, 177–79 (1804). Chief Justice Marshall observed that the President may have had the discretionary authority to order the seizure absent legislation but had no discretion to violate the Act. Id. at 177–78. Similarly, in Kendall v. United States ex rel. Stokes, the Supreme Court reviewed the official acts of the postmaster general, the President's subordinate officer who derived his authority from the Executive Branch, because the civil case involved the violation of a statutory requirement. 37 U.S. 524, 612–13 (1838). To find a statutory violation unreviewable, the Court held, "would be clothing the President with a power entirely to control the legislation of congress, and paralyze the administration of justice." Id. at 613.
Likewise, the court thinks the weight of functional considerations lean toward no blanket immunity in this context.
The federal prosecution of a former President fits the case "[w]hen judicial action is needed to serve broad public interests" in order to "vindicate the public interest in an ongoing criminal prosecution." Fitzgerald, 457 U.S. at 754. The risks of chilling Presidential action or permitting meritless, harassing prosecutions are unlikely, unsupported by history and "too remote and shadowy to shape the course of justice." See Clark, 289 U.S. at 16. We therefore conclude that functional policy considerations rooted in the structure of our government do not immunize former Presidents from federal criminal prosecution.
Particularly true that president cannot be understood to have blanket immunity for trying to steal an election.
We cannot accept former President Trump's claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.
Court does not find Trump's argument of no prosecution if acquitted in an impeachment trial consistent with the text and purpose of the relevant constitutional clauses.
In drafting the Impeachment Judgment Clause, to the extent that the Framers contemplated whether impeachment would have a preclusive effect on future criminal charges, the available evidence suggests that their intent was to ensure that a subsequent prosecution would not be barred.
Importantly, court emphasizes that the impeachment process is a political process involving political charges and political punishments, and as such it does not trigger double jeopardy principles regarding criminal prosecutions in which criminal punishments are at stake.
In light of the very different procedures and purposes associated with impeachment proceedings as compared to criminal proceedings, former President Trump's reliance on the Double Jeopardy Clause is misplaced. Impeachment is not a criminal process and cannot result in criminal punishment.
We'll see what the Supreme Court does with this.
