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Just after voting to acquit Trump, GOP senate leader Mitch McConnel said:

We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one. (source)

However, given the past 4 years of discussion regarding the immunity of a sitting president, can Trump be prosecuted for alleged crimes he commited while being president, or is his immunity invalid only for crimes commited as a private citizen?

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Megaptera novaeangliae
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    I'm not sure if this question is fit for Law SE or Politics SE... but these days nobody is. –  Feb 16 '21 at 02:20
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    I think it would be better on law, myself – David Siegel Feb 16 '21 at 02:25
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    I agree with David Siegel that this is a better fit for Law SE, because you are asking for a legal perspective on a former president's immunity for actions taken while in office. Therefore, I will move the question to Law SE. – JJJ Feb 16 '21 at 02:48
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    It would be helpful if you would distinguish the president's immunity when applied to the conduct of official duties versus non-official duties. – BobE Feb 16 '21 at 04:09
  • @BobE but that's not always clear, and actually the official duty can be the very target of the process (for inetance, have a look at my comment here) – Megaptera novaeangliae Feb 16 '21 at 04:14
  • This should not have been migrated. It's already answered by this answer to a diff question on politics.SE. It should have been marked as a dup. – grovkin Feb 16 '21 at 23:12
  • I disagree. I think the linked answer, by @grovkin does not address the current question, which I would object to making a dup. The linked Question could and perhaps should have been migrated also. – David Siegel Feb 17 '21 at 23:37

1 Answers1

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Yes

The rule against prosecuting a sitting President is not a law, it is a Justice Department opinion and policy. The justification for it is that dealing with a criminal case would be severely distracting to the President, and thus harmful to the nation. Besides, the opinion goes on, any serious issue can be dealt with by impeachment. That reasoning obviously does not apply to a former President.

Article I, section 3, paragraph 7 of the US constitution says:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. (emphasis added)

This clearly contemplates the criminal prosecution of a former office holder, after such a person was removed by an impeachment. There is no exception for a President. Therefor a President can be criminally charged and prosecuted for actions during the presidency, provided that the evidence to establish probable cause is there, and that a Grand Jury indicts said former President.

So far as I know there has never been a case where such a thing was done. President Ford's pardon of President Nixon stopped any Federal prosecution of him. I think there have been cases were former US Judges, after impeachment, were criminally prosecuted. But that is not quite the same thing -- no one claims that sitting judges are immune to criminal charges.

To be clear this would not apply just to issues that a President had been impeached for. A former President is no different from anyone else in this respect. Any such person can be prosecuted if there is probable cause, and convicted if there is proof beyond a reasonable doubt of criminal violation of some law, even if the violation occurred while the president was in office.

David Siegel
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  • Thanks. My question has actually nothing to do with the impeachment per se, it's just a curiosity regarding a "reversed" version of the argument used by GOP during these 4 last years. For instance, what I'm asking here is the same of this: suppose Bush was the direct responsible for the tortures in Guantanamo, could he be criminally prosecuted (since he was the president then), or is he immune? – Megaptera novaeangliae Feb 16 '21 at 03:25
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    @Megaptera He would not be immune just because he had been president. If there was evidence, he could be prosecuted – David Siegel Feb 16 '21 at 05:44
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    +1. If it's not out of scope for this question, might it be worth distinguishing between acts carried out by the president which would be regarded as being part of the job (and so subject to presidential immunity), and those that would be regarded as being personal acts (and so not immune). – Steve Melnikoff Feb 16 '21 at 10:26
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    @Steve Melnikoff I think that should really be a separate but related question. For one thing, there is at least an argument that absolute presidential immunity applies only while the President is in office. But a form of Sovereign Immunity would apply to official acts. If others think it proper I will attempt ,to add a discussion of that issue nto my answer here. – David Siegel Feb 16 '21 at 14:46
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    Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Feb 16 '21 at 23:28
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    The President, as head of the executive branch, could exert substantial pressure on any executive officials who might seek to prosecute him as long as he holds his position. If the President could be prosecuted while in office, it would be difficult to distinguish a real prosecution, to which the Double Jeopardy rule should attach, from a sham one. Requiring that someone be removed from their position as head of the executive branch before prosecution avoids that issue. – supercat Feb 17 '21 at 17:29
  • Presidents can be sued in Civil Court, which happened to Bill Clinton and I believe also Donald Trump, but there's currently no precedent for criminal prosecution of a sitting president. – Zac Faragher Feb 17 '21 at 23:35
  • @supercat that was much of the reason for the independent counsel law, in the wake of the Watergate scandal. – David Siegel Feb 17 '21 at 23:39