The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A Very Different Constitutional Immunity Amendment
The "forgiveness doctrine" should be the basis for continued immunity while in office.
Today, Acting Deputy Attorney General Emil Bove instructed the Acting U.S. Attorney for SDNY to dismiss the indictment against New York City Mayor Eric Adams without prejudice. This decision was made without regard to the "strength of the evidence or the legal theories on which the case is based." Rather, the ADAG found the prosecution has "improperly interfered with Mayor Adams' campaign in the 2025 mayoral election." Moreover, Bove wrote that "the pending prosecution has unduly restricted Mayor Adams' ability to devote full attention and resources to the illegal immigration and violent crime that escalated under the policies of the prior Administration."
Both of these rationales only make sense so long as Adams is in office. If he loses re-election, then both of these rationales drop out. Importantly, a former mayor is no longer of use of the executive branch. Adams can then be recharged. The memo states that the confirmed U.S. Attorney can review the matter following the November 2025 election. In other words, the Trump-appointed prosecutor can decide whether to re-indict Adams based on the outcome of the election. Presumably, if Adams loses election, he will be indicted. Or he might be pardoned. But if Adams wins re-election, he will not be indicted.
Critics have cited this decision as yet another example of lawlessness by the Trump Administration. I approach the situation differently. In fact, this memorandum crystalizes something I have been toying with for some time.
There was a time when an indicted elected official would immediately resign in shame. The stigma of holding office in the face of a criminal indictment was too great. Today, that stigma is long gone. Politicians now routinely serve while under indictment. George Santos did not resign, but was expelled. Senator Robert Menendez did not resign until he was convicted. Mayor Adams has not resigned, and apparently made the right judgment. Relatedly, Donald Trump ran for President, successfully, while under several indictments.
These politicians have argued, fairly or unfairly, that the indictments are partisan witch hunts. And at least to some degree, these politicians have maintained some popular support. Their supporters agree that politics went into their prosecutions. Indeed, President Biden said as much about the prosecution of his son Hunter. Who is the ultimate arbiter of these sorts of crimes? I would wager it is not the jury. Rather, it is the voters.
This dynamic reflects the Texas "forgiveness doctrine." Under that doctrine, an official cannot be impeached for conduct that was known when the official was elected to his current term. In effect, the voters forgave the official for his transgressions. Trump was convicted by twelve Manhattanites, but was acquitted by 77 million voters.
I would propose a 28th constitutional amendment that would overrule Trump v. United States, at least in part, but would extend immunity far more broadly. In short, federal and state elected officials can be indicted while in office, but cannot be tried for those indicted offenses until after they no longer in that elected office. All applicable statutes of limitation would be tolled while the official remains in office.
There are several options. First an indicted elected official can resign, in which case he can be tried immediately. Second, the indicted elected official can be impeached, removed, expelled, recalled, or whatever process is available under law, and then tried immediately. Third, the indicted elected official can choose to serve out his term, and not run for re-election; when his term concludes, he can be tried. Fourth, the indicted elected official can run for re-election; if the voters re-elect him, then he cannot be tried until he no longer holds that position. In effect, this amendment would eliminate all immunity for indictments, but grant temporary immunity against trials for current office-holders.
I can already hear the howls! Josh, how can you do this?! Indicted officials would have every incentive to stay in office so they do not face a criminal trial. And they could use the powers of their office to stay in power to forestall a criminal trial. Indeed, the politician can violate election laws as a means to secure their re-election, and those offenses could not be subject to a criminal prosecution.
I am aware of all of these costs. But there are benefits. I think Lawfare has wounded our criminal justice system in ways that are difficult to quantify. When a politician is indicted, the automatic assumption is that politics played a role in the process. Under this amendment, the power of Lawfare would be blunted. All a prosecutor could do is lay the facts at the elected official's feet. The elected official can choose to rebut or address the facts however he wishes, and potentially even incriminate himself further. But it would be the voters to decide the allegations are serious enough to deny the candidate another term. This is the real grand jury.
Moreover, the ability of a popular politician to maintain his seat in government may be more important than whatever marginal gains come from a criminal prosecution. I think this dynamic was true for Trump. The allegations in the New York indictment were beyond trivial. Voters simply did not care. A similar argument could be made for the never-ending prosecution against Israeli prime minister Benjamin Netanyahu, who holds his governing coalition together by the tightest margins in a time of crisis.
Maybe this idea is ahead of its time. At least for the next four years, prosecutions of Republican elected officials will likely decline, while prosecutions of Democrats elected officials will likely increase. And four years afterwards, the trend may reverse. This proposal would make it difficult for the incumbent administration to lock up perceived political enemies. The voters can keep them in office. There might be a benefit if elected officials can face the voters before facing the jury. This amendment would create something of a middle-ground. Prosecutors can make charges, and the voters can decide what to do.
Ultimately, if the person leaves office, the criminal trial will await it is still deemed a valid exercise of prosecutorial discretion. Most charges against politicians are really offenses of the moment, that few people will remember years later.
