This is definitely an opinion question and cannot be decided, but I am interested in your opinions. The impeachment clause of the US constitutions reads as follows:
7: 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.
Supposing a president were impeached. But SCOTUS has ruled that presidents are not subject to punishment for violating laws during the performance of their duties. Do you think that if they were impeached for violating a law (or, say, the emoluments clause of the constitution), Scotus might see things differently and permit prosecution. I think they most certainly should, but would they?
The question presented was
(e) This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? In answering that question, unlike the political branches and the public at large, the Court cannot afford to fixate exclusively, or even primarily, on present exigencies. Enduring separation of powers principles guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity applies equally to all occupants of the Oval Office.
The decision was that the former President has absolute immunity for some official acts and presumptive immunity for others ( based on some distinction that only John Roberts might understand) but “presumptive immunity” means that theoretically, a President could be criminally prosecuted for some official acts. The decision says nothing about a sitting President who is impeached and convicted by the Senate. If that comes up, it will go back to the Supreme Court all over again- although they might not be so anxious to help as they were last time. ( for multiple reasons)
When you effectively have single-party rule, it no longer really matters how you divide up the supposed branches of government. The SCOTUS isn’t some impartial algorithm, just a bunch of appointees sharing their own opinions on things. If that party games the system effectively enough to appoint a majority of the judges, and times their decisions well, they have a very good chance of getting whatever ruling they want.
It’s a laughably vicious cycle at this point; the executive dog-whistles the legislature to toe the line, they nod approvingly of whatever judges are appointed, who in turn pass all the laws pass down all their interpretations to further empower the executive… and even if all that weren’t true, there’s no prosecutor who could succeed at or survive such a prosecution, either in terms of their career or possibly their lives, anyway.
If you’re looking for checks and balances, well, maybe it’s time to move overseas.
SCOTUS already gave him immunity. Any actual punishment would be waved away before lunch.
SCOTUS cannot stop an impeachment.
They have already ruled the president is immune from civil or criminal actions for almost anything he/she does while in office.
That’s it…the question is that tiny little gray area they left open but good luck with that. The former president’s lawyers will tie that up in courts for many years at the least if it is not tossed at the outset due to immunity.
OP - now I’m wondering if I’m misreading your question. I took it as the sitting President is impeached, convicted by the Senate and removed from office. At that point, when he is the former President , can he be criminally prosecuted as provided for in the Constitution?
Is that your question ?
Strictly speaking, the two are separate. Nothing in an impeachment reverses Case Law.
By including the “but” clause, the framers were establishing that impeachment, a political process whose effects are only removal and (if so decided) disqualification, does not preclude ordinary prosecution and trial in the courts of law if that is what otherwise proceeds. It does not mandate it and it does not remove any other obstacles to it.
So if the political grounds for the impeachment are at the same time in the criminal justice realm something for which SCOTUS has recognized immunity, then that’s as far as it goes; if not then it’s up to whoever’s the prosecuting authority with jurisdiction to decide if it’s worth their time.
Right- being impeached by the House and impeached by the Senate is more along the lines of being thrown out of the country club and banned from ever being a member again. It holds legal weight only insofar as it removes the President from office and bans him from holding any position in the Federal government again.
It doesn’t send him to prison, it isn’t listed as a felony, etc.
The old double-whammy was that if you did something bad enough, you could be impeached and convicted in Congress, and then when you were out of office, you could be tried in Federal court for whatever you had done. Now, not so much.
State law would still apply though.
That was precisely my question. Would an impeachment and conviction take away his immunity from prosecution? The constitution would appear to say so, but SCOTUS might not agree.
A Supreme Court bestowed this protection and a later Supreme Court could take it away. They certainty meant to give this gift to Trump, but if he were to do something so mind-bogglingly horrendous that the current Congress could convict him they might find a way to let a prosecution take place in a court.
As stated above, no. The constitution says “THIS doesn’t prevent further prosecution”. It does not say “nothing can prevent further prosecution” or “further prosecution shall happen”.
If the situation ever comes up, SCOTUS may or may not allow prosecution depending on whether it was an official act or not and if it was official , it then depends on whether it was one of the acts that gives a president absolute immunity or one for which there is presumptive immunity. Or maybe things will change - this SC doesn’t have any problems overturning precedents and neither might a future one. However, there is no way any former US president is actually going to be imprisoned for anything short of personally killing someone so a criminal prosecution will probably be pointless.
Is getting a bribe from Qatar an official act?