“With the Supreme Court’s opinion on presidential immunity for official acts, is the ability of the House to bring impeachment proceedings on a future president even a viable solution for holding a president accountable anymore?”
— M. Auricchio, Albany, N.Y.
Hi M.,
Yes, it is. In fact, the immunity ruling makes impeachment an even more important accountability tool.
Before last year’s ruling in Trump v. United States, it was generally understood that former presidents were subject to prosecution. Otherwise, there wouldn’t have been much point to Gerald Ford pardoning Richard Nixon in the wake of the Watergate scandal. Had the Trump immunity standard been in effect then, Nixon might not have had to worry about criminal punishment in 1974.
Fast forward to the more recent past, when Republican Sen. Mitch McConnell said in justifying his decision to not convict Trump in his Jan. 6 impeachment trial: “We have a criminal justice system in this country” that former presidents aren’t immune from.
That’s no longer true. At least, we no longer have the system that McConnell implied we had in 2021.
To be sure, Chief Justice John Roberts’ opinion in the immunity case didn’t say former presidents are immune from any prosecution no matter what. But the vague test he laid out leaves open questions about how far it goes. What we do know is that presidents can be impeached, convicted and removed from office. But the keyword there is “can.” The process requires a majority of the House and two-thirds of the Senate to succeed. With both chambers currently controlled by Republicans who are more likely to try to impeach judges who dare to rule against Trump, don’t expect this president to be impeached anytime soon — no matter what he does. But unlike the criminal justice system that we no longer have when it comes to former presidents, impeachment is still a theoretically viable tool, even if it’s not practicably viable in the short term. Have any questions or comments for me? I’d love to hear from you! Please email deadlinelegal@nbcuni.com for a chance to be featured in a future newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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