President Joe Biden muddied the constitutional waters in his recent Washington Post article. His major claim is:
This nation was founded on a simple yet profound principle: no one is above the law. Not the president of the United States. Not a justice on the Supreme Court of the United States. No one. . . .
I am calling for a constitutional amendment called the No One Is Above the Law Amendment. It would make clear that there is no immunity for crimes a former president committed while in office. I share our founders’ belief that the president’s power is limited, not absolute. We are a nation of laws—not of kings or dictators.
These emphatic words were followed by Senator Majority Leader Chuck Schumer’s introduction of the “No Kings Act,” a proposal to turn Biden’s vision into law. The position of Biden and Schumer shows no appreciation of the vital role that various forms of immunity have played since the founding era. In their continuing legal efforts to discredit former president Donald Trump, they overlook the abuses that follow from excessive and multiple prosecutions of the former president—or indeed, of any public official.
American constitutional law has always included an elaborate system of implied immunities given to various kinds of officers of the United States in order to allow them to conduct their duties without fear of retribution by large numbers of aggrieved individuals. Thus in Nixon v. Fitzgerald (1982), a divided five-to-four Supreme Court, following earlier cases, held that the president was entitled to an absolute immunity in a civil suit for damages brought by a management analyst who had lost his job during a reorganization. It was well understood that the text of the Constitution said nothing about the matter, but that the president had to be given an absolute immunity, for in the absence of such immunity, “executive officials would hesitate to exercise their discretion in a way injuriously affecting the claims of particular individuals.” That peril could take place if the suit were brought while the president was still in office, or thereafter, as here, when suit was filed four years after the president left office.
The argument could not have been textual, because there was no explicit text on which the matter could turn. The only oblique reference to special protection was the Speech or Debate Clause, Art. I, Sect 6, Cl. 1, which stated that “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other place.” Similar implications of absolute immunity were found in other contexts as well. Thus in Barr v. Mateo (1959), Justice John Marshall Harlan opted for an absolute privilege for any government official “within the outer perimeter of petitioner’s line of duty.” Similar absolute immunities were afforded to judges and prosecutors on the grounds that they too could not discharge their duties if subject to suit by anyone who disagreed with the outcomes they desired.
The dissent in Nixon v. Fitzgerald did not dispute that the president was entitled to some immunity, but its functional analysis insisted that the privilege should be only qualified and not absolute. Instead, it looked to Butz v. Economou (1978), which held that public officials in the Department of Agriculture charged with conducting a revenge investigation were entitled only to a qualified immunity that applied when their actions were “based on good faith and reasonable grounds.” Butz proved wholly unworkable in practice because any conscious policy decision within the executive branch could always be challenged for corrupt motive, rendering the qualified privilege a dead letter and leaving public officials subject to multiple suits both during and after their term of office. In 1988, Congress passed the so-called Westfall Act that returned to the absolute immunity of Barr v. Mateo. Qualified immunity was not mentioned in former president Trump’s immunity case.
This civil line of cases is of course distinguishable given that the Biden proposal would only strip all presidential immunity for criminal charges, a supposed self-evident truth historically never applied anywhere. The perils of this view are greater than civil suits, given that numerous cases can be brought after the president leaves office by his political nemesis—a real threat to the rule of law.
As with all cases of immunities, the ultimate question here is whether the risks of too much litigation are greater, or lesser, than those of too little. If civil litigation can dull performance in office, criminal liability can do so to a greater extent, which will make able people reluctant to take the job or to exercise vigor in pursuit of their public duty, a risk that Justice Sonia Sotomayor does not address in her impassioned dissent in Trump v. United States (2024). What makes the urge for criminal prosecution even more dangerous in this case is that it overlooks or denigrates the remedy now in place to discipline the president for abuse in office: impeachment. The current mechanism allows the Senate to impose punishment that goes no “further than [] removal from Office, and disqualification [for] hold[ing] [] any Office of honor, Trust or Profit under the United States,” which does not bar a convicted president from running for re-election. But if there is treason, bribery, or some other high crime or misdemeanor, there is no discretion—the president must be removed from office. Here is the kicker: “[B]ut the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law,” which explains what can happen afterward in an independent criminal proceeding tied to the same offense.
The impeachment power is not mentioned by Biden, but it is critical to understanding the total set of institutional arrangements. Donald Trump was impeached; his impeachment was most definitely a trial where conviction was one possible outcome. But what should be done in cases like this, where there has been an acquittal? It is all too common to say, as Judge Tanya Chutkan did in her opinion on the subject, that an acquittal in this distinctive kind of proceeding does not bar the wide range of criminal prosecutions brought against Trump for offenses that grew out of the events of January 6. But there is absolutely no reason why the standard protections of double jeopardy, later enshrined in the Fifth Amendment to the Constitution—“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”—should not apply to impeachment. The Constitution says nothing about what should be done in the event of an acquittal. The correct way to fill that gap is to apply the standard protection against double jeopardy. The abuse of multiple trials for the same offense is every bit as great if the first trial is in the Senate instead of in federal district court or some military tribunal.
Nor, ironically, does the Roberts opinion in Trump v. United States have anything useful to say about the subject. He does mention that after conviction, the defendant could be subject to a criminal trial, but he does not mention that this trial cannot be a free-floating affair, and must instead be tethered tightly to the grounds for the conviction. Roberts further insists that during the Pennsylvania ratification debate in 1787, James Wilson (with impeccable credentials) “similarly concluded that acquittal of impeachment charges posed no bar to subsequent prosecution.” But the exact quotation makes no reference to an acquittal but says something entirely different: “far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.”
Pace both Biden and Roberts, one is above the laws so long as impeachment is in place. Thus, even if the convicted president remains in office, as was a distinct theoretical possibility for offenses that do not amount to treason, bribery, or a high crime and misdemeanor, he is still subject to criminal prosecution. There is no further implication that an acquittal offers no protection against open season on the president with a wide range of criminal charges, none of which can be linked to any guilty verdict, both during and after the term of office. Indeed, no one thought that after an acquittal that one, or more, criminal prosecutions could be brought for the same offense. Yet Chief Justice John Roberts never once addresses the role of an acquittal in an actual impeachment. Instead, he worries about fringe hypotheticals where somehow a president who “evades impeachment for one reason or another” or “conceals” his offense should not be allowed to escape punishment. January 6 was not such an event.
The chief justice notwithstanding, advantages of refusing to allow further punishment after an acquittal are legion. It is hard to imagine that the impeachment process (which would surely cover this case) is going to prove slower and more ham-handed than a criminal trial, which moves at glacial speed given the elaborate preliminary motions and procedural hurdles, from jury selection to admissibility of evidence, to framing of charges, to sentencing. There is, moreover, no risk of forum shopping in an impeachment trial, which must take place before the Senate with its well-established set of rules for impeachment. And the court’s troublesome line between official acts, covered by absolute immunity, and unofficial acts, which leave the president wholly exposed, does not play any role in an impeachment proceeding, where the Supreme Court does not set the rules of the game.
In dealing with matters like this, it is critical to stick to customary practices, for the political risks are too great to use half-baked legal theories to transform our legal culture. We should worry more about the degradation of the legal process.
