The Donald Trump Immunity Ruling

49

12

unless the Congress first impeached and convicted them. No court has previously imposed such an irrational “impeachment first” constraint on the criminal prosecution of federal officials. See, e.g., Isaacs, 493 F.2d at 1144 (“[W]e are convinced that a federal judge is subject to indictment and trial before impeachment . . . .”). ¹2 Even if there is an atextual basis for treating Presidents differently from subordinate government officials, as former President Trump suggests, his proposed interpretation still would leave a President free to commit all manner of crimes with impunity, so long as he is not impeached and convicted. Former President Trump’s interpretation also would permit the commission of crimes not readily categorized as impeachable (i.e., as “Treason, Bribery, or other high Crimes and Misdemeanors”) and, if thirty Senators are correct, crimes not discovered until after a President leaves office. See U.S. CONST. art. II, § 4; see also, e.g., 167 CONG. REC. S736 (daily ed. Feb. 13, 2021) (statement of Senate Minority Leader McConnell) (“We have no power to convict and disqualify a former office holder who is now a private citizen.”).¹³ All of

12 Indeed, history reveals examples of prosecutions preceding impeachments. See Nixon v. United States, 506 U.S. 224, 226–27 (1993) (defendant judge criminally prosecuted and then impeached); Hastings v. United States Senate, 716 F. Supp. 38, 41 (D.D.C. 1989) (same); Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution While in Office, Op. O.L.C. 4 (1973) (observing that, as of 1973, only 12 impeachments had occurred, but “presumably scores, if not hundreds, of officers of the United States have been subject to criminal proceedings for offenses for which they could have been impeached”).

13 See also statements of Senators Barrasso, Blunt, Braun, Capito, Cornyn, Cramer, Crapo, Daines, Ernst, Fischer, Grassley, Hoeven, Hyde-Smith, Inhofe, Kennedy, Lankford, Lee, Lummis, Moran, Portman, Risch, Rounds, Rubio, Shelby, Sullivan, Thune, Tillis, Tuberville and Wicker.