There is virtually nothing in the words of the Constitution that even comes close to supporting the former president's bold defense Donald J Trump against allegations that he plotted to overturn the 2020 election: the claim that he enjoyed immunity from prosecution for his actions while in office.
A federal appeals court will hold a hearing on the issue next week, considering factors such as history, precedent and separation of powers. However, as the Supreme Court has recognized, the Constitution itself does not specifically address the existence or scope of presidential immunity.
In defense of his appeal, Trump said that a constitutional provision was included in the analysis, but that reasoning represents a very creative legal interpretation. The provision, known as the impeachment clause, states that officials impeached by the House of Representatives and convicted by the Senate remain criminally liable can be tracked.
Donald Trump speaks at a campaign rally in Reno, Nevada, USA. Photo: Jabin Botsford / The Washington Post
The provision states: “In the event of impeachment, the procedure shall not extend beyond removal from office and disqualification from holding and enjoying any associated position of honor, trust or advantage.” US: but the convicted party shall remain liable and subject to indictment, trial and punishment in accordance with law.”
In short, the clause actually states that “the party convicted in the Senate” may continue to be subject to criminal prosecution. But Trump said the clause implied something more.
The provision “assumes that an exonerated president cannot be prosecuted,” Trump’s memo said.
Continued after advertisement
An amicus curiae memorandum from former administration officials said Trump's stance had “farreaching and absurd consequences” and emphasized that a large number of government officials would be impeached.
“Under defendant’s interpretation,” the document states, “the executive branch would not have the authority to prosecute current and former holders of civilian positions for their actions in the exercise of that function unless they were previously the subject of impeachment proceedings.” and a conviction.” Congress. This would give countless authorities criminal immunity.”
Trump made another, even bolder and more concrete argument: “A president acquitted by the Senate cannot be prosecuted for the conduct acquitted.”
As we know, Trump was acquitted of incitement of insurrection in his second impeachment trial when 57 senators voted against him, ten of whom fell short of the twothirds majority required for conviction.
The idea that an acquittal in the impeachment trial would confer procedural immunity may have surprised some of those who voted for his acquittal.
For example, Senator Mitch McConnell, Republican leader, who voted to acquit. Shortly afterwards, in a fiery speech on the Senate floor, he said the legal system could still hold Trump accountable.
Images from the attack on the US Capitol on January 6, 2021. Photo: Michael Robinson Chávez / The Washington Post
Continued after advertisement
“We have a criminal justice system in this country,” McConnell said. “We have a civil case. And former presidents are not immune to any of them.”
This shows that Trump's interpretation of the clause is far from obvious, but the Justice Department said it was far from implausible. In 2000, his Office of Legal Counsel issued a 46page memorandum devoted to this very issue, entitled “On the Possibility of a Former President Being Indicted and Tried for the Same Crimes That Led to His Impeachment in the House of Representatives and.” led to his acquittal in the Senate.”
The argument that such trials would violate the Constitution “has some merit,” says the memo, written by Randolph D. Moss, now a federal judge. But the text goes on to say: “Despite its initial plausibility, such an interpretation of the impeachment clause does not appear convincing to us.”
And further: “We have no evidence that the authors and ratifiers of the Constitution chose the expression 'the condemned party' with a negative implication.”
More fundamentally, the memo states: “Impeachment and prosecution serve completely different purposes.” Impeachment is about politics. Criminal proceedings involve the law.
In a brief filed Saturday, Attorney General Jack Smith wrote that “an acquittal in an impeachment trial by the Senate may reflect a technical or procedural decision rather than a factual conclusion.” The document highlighted that at least 31 of the 43 senators sitting in the Senate impeachment trial Those who voted to acquit Trump during the impeachment trial did so in part because he was no longer in office and therefore would not be subject to Senate jurisdiction.
Former US President Donald Trump in front of the New York State Supreme Court during the civil fraud trial of the Trump Organization in New York City on December 7, 2023. Photo: EDUARDO MUNOZ ALVAREZ / AFP
Continued after advertisement
Trump's interpretation of the provision “would result in an implausible perversion,” Judge Tanya S. Chutkan, who is overseeing his trial in federal district court in Washington, wrote last month in a ruling rejecting Trump's claim of absolute immunity.
She emphasized that the Constitution provides for impeachment in very specific cases “treason, bribery and other high crimes and misdemeanors.”
Judge Chutkan, in Trump's reading, explained: “If a President commits a crime that does not fall within the specific classification of that limited category and therefore cannot be prosecuted and convicted through impeachment, the President could never be prosecuted for such a crime.” “.
“On the other hand,” she continued, “if Congress has no ability to impeach or convict a president while he is in office — perhaps because the crime was committed at the end of his term or was covered up until the end of his term — the former president could not be prosecuted.”
She added that President Gerald R. Ford's pardon of former President Richard M. Nixon, who resigned amid growing calls for impeachment over his involvement in Watergate, would have been unnecessary under Trump's interpretation. / TRANSLATION BY AUGUSTO CALIL