I’m seeking a law-informed answer here, not a debate, and maybe this has been answered here already. I find two references in the Constitution to potential illegal activity committed by a president. First, Article I section 3 refers to the consequences of being impeached, including that the perpetrator will be “liable and subject to indictment, trial, judgment and punishment according to law.” Second, Article II section 4 refers to the punishment upon “impeachment for and conviction of…high crimes and misdemeanors” committed by the president. Does the Supreme Court decision absolving the president from criminal prosecution for acts committed while president invalidate these two parts of the Constitution? Or - how did they get around that?
As I understand it, IANAL, the logic was - what the president did as part of his regular duties is what is specifically exempt from prosecution. If the president were to hypothetically, order the armed forces to kill civilians - then that is part of his duties as president (orders to the army) and not subject to prosecution. (Although the SCOTUS has zero say on what is or is not impeachable - for congress, what is an impeachable “high crime or misdemeanour” is whatever a majority congress says it is, and if 2/3 of the senate agree).
However, should the president, say, shoot his dog, that is not part of presidential duties and therefore he could be charged (when leaving the white house) with animal cruelty.
it seems to follow on to the Nixonian logic “if the president does it, it’s not illegal.”
Where it becomes confusing is when the president, let’s say, calls a state official and asks them to “find” votes. As long as the ask is not explicitly demanding fraud, the argument is that they were checking up on the legal validity of elections, which is a concern of the president as executive of the country and in charge of DoJ functions, although not explicitly his job. Counter to that, it could be argued he is acting as a candidate, not president. (I don’t want to debate that issue - it’s just an example where the line is blurred). In that case, likely, SCOTUS would eventually have to rule on the specific applicability of their general decision to that specific case if the president were charged in federal court.
The point is to remove any argument that the criminal charges were dealt with in the impeachment trial, and thus can’t be charged again in court because of the prohibition on double jeopardy. It doesn’t mean that it must be possible for there to be a criminal trial. Someone can be impeached and removed for something that isn’t a crime (the first successful impeachment was for drunkenness) and in that case there could be no trial.
I don’t see how you can address this without opinions and debate. The fact is that, if the system of checks and balances is working properly, it can’t happen. For the system of checks and balances to work properly, the people involved must hold the Constitution above personal or political interests.
It’s best to think of it like this for FQ. The person who is President cannot be charged with a crime while they are the President. The only remedy the Constitution speaks to is a political remedy (not criminal) - impeachment for abuses of power. Those abuses of power can be for illegal or legal things.
After the Senate removes the President using the impeachment process laid out in the Constitution, the person who was President is no longer President - removal from power is the political remedy. That ex-President can now be charged with a crime for the illegal activity they did while that person was President. But it depends on the crime, as the now ex-President might have some immunity for the actions they undertook while they were President.
I changed your quote to say “ex-President”. If that’s what you meant, I can answer the question using process described above. The Constitution speaks to the impeachment process. I’m aware there are words like “crime” “punishment” “trial” etc in the Constitution, but it’s just about a political remedy, not criminal prosecution. So there is nothing to get around. The recent SC opinion was just deciding whether the activity the now ex-President did while President is currently immune from criminal prosecution.
I think this is FQ safe, but I’m certainly open to correction.
That sounds right. Another way to look at is to say that whatever a president is impeached and removed for is, by definition, a high crime or misdemeanor. It doesn’t have to be a crime in the eyes of the legal code of the United States. It could be anything, as long as the necessary number of representatives and senators agree that is.
ETA. It might be easier to think of the case of a Supreme Court justice rather than the POTUS, since there are already other checks and balances (veto overrides, etc.) WRT the relationship between Congress and POTUS. In theory, Congress could impeach and convict a SCOTUS justice for merely ruling a certain way on a case. If that were to happen, then making that ruling would retroactively mean that decision by that member of SCOTUS was a “high crime or misdemeanor”.
Some American history instructor explained that a “high” crime is something only a high official can commit. This was in the context of the Andrew Johnson impeachment and his crime was in firing a cabinet officer without the consent of congress (or maybe just the senate). Only the president can fire a cabinet officer, so that was a high crime. Misdemeanors are presumably ordinary crimes. That same instructor opined that if the senate had convicted Johnson (it failed by one vote) the US might have evolved towards a more parliamentary kind of government with presidents impeached for political differences. But with 2/3 senate vote required this seems unlikely to me.
Exactly so. The reason we haven’t had such things happen is that the 2/3 vote of the senate requirement makes it highly impractical, not because it’s unconstitutional for Congress to impeach and convict for a political rather than criminal offense.
The Older definition split crimes into High, Middle and low, and High crimes faced the death penalty.
There are two forms to the President, the Executive and the Person.
The Executive has the power to do things like send troops to put down a rebellion. Said conflict might result in deaths and, consequently, there’s an argument that the Executive ordered or was complicit in murder.
In general, we don’t want the President to have to go to court over every thing that’s done in his name, as a simple part of executing the laws. I mean, after all, the police are people who break into homes, kidnap people, forcibly inter them, and steal their possessions. Governance is, in a sense, the organized use of criminal activities to ensure peace and order.
But, at the same time, the Person who is serving as the President might do a thing like outright murdering that lady that he had an affair with, and who threatened to go to the newspapers and tell them everything.
Putting down a rebellion and murdering your lover are wildly different things, despite both ostensibly being the use of force to stop people from doing things that you’ve decided you don’t want them to do.
When the President is using force or questionable means to execute the law, he is the Executive. But, outside of that, he’s just a Person like everyone else and just as bound to obey the law as everyone else.