Presidential prerogatives are essential to an effective executive branch

The Supreme Court on April 25 asked former and possibly future president Donald J. Trump absolute immunity from prosecution in the Washington, D.C., indictment brought by special counsel Jack Smith. The court is scheduled to hear arguments for and against his motion. Mr. Trump is charged with conspiracy to commit fraud against the United States, conspiracy to deny the right to vote, conspiracy to obstruct an official proceeding, and obstruction of an official proceeding in connection with the events of January 6, 2021.

U.S. District Judge Tanya Chutkan rejected Trump's original motion on December 1, but on February 6, a panel of judges from the Federal Circuit Court of Appeals upheld her dismissal. Mr. Chutkan was appointed by former President Barack Obama and donated to his 2008 presidential campaign. Two of the three appellate court judges were appointed by President Joe Biden, and one was shortlisted for the Supreme Court seat currently held by Justice Ketanji Brown Jackson.

If the Supreme Court rules in Trump's favor on his appeal, it could result in the dismissal of the former president's indictment in Washington and leave him open in other criminal cases and possibly related civil matters. may have a positive impact on

Trump's legal theory holds that potentially illegal acts committed by a president while in office are not subject to normal criminal prosecution. Drawing on British common law, the U.S. Constitution instead provides an impeachment mechanism that allows Congress to consider provisions specifying alleged “high crimes and misdemeanors.” A simple majority of the House can impeach a defendant, followed by a trial in the Senate. The Senate requires a two-thirds supermajority for conviction and removal from office, and the Senate can use its discretion to disqualify a convicted person from holding future public office.

A careful reading of the Constitution supports President Trump's immunity resolution. According to Article I, Section 3, Section 7, “Judgment in cases of impeachment shall extend to the extent of removal from office and disqualification from holding and enjoying any office of honor, trust, or gain under the United States. “However,'' the clause continues instructively, “the convicted party shall nevertheless be liable according to law and subject to prosecution, trial, judgment, and punishment.''

There is no provision stating that political parties that are acquitted in impeachment proceedings are “responsible for and subject to” criminal prosecution, as was the case with President Trump twice. And it shouldn't, because the Fifth Amendment prohibits repeated prosecutions for the same crime (or “double jeopardy”). Additionally, there is no constitutional provision for prosecuting a high official without the preliminary step of impeachment, and impeachment does not limit the official's term in office. Trump's second impeachment trial will take place in February 2021 after he leaves office, as well as the 1876 impeachment trial of Secretary of War William W. Belknap, who earlier resigned but was subsequently impeached and tried. was.

In other words, absent a conviction in an impeachment trial, there is no constitutional basis for President Trump to be prosecuted in Washington, D.C.

The Department of Justice's Office of Legal Counsel acknowledged this in a 1973 internal binding memorandum regarding sitting presidents, stating that they prosecute presidents because they are “the symbolic head of state” and ” Injuring the president through criminal proceedings is unconstitutional.” It is to impede the operation of the entire government apparatus, both foreign and domestic. President Trump, who is seeking re-election, similarly argued that if the lower court's ruling were upheld, “the threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial presidential decisions.” ” he claims.

Special Counsel Leon Jaworski and Ken Starr recognized that principle in the respective cases of Presidents Richard Nixon and Bill Clinton, but both accused sitting presidents of possible criminal conduct. He concluded that it was permissible to investigate. But in both cases, lawyers relied on the impeachment mechanism to deal with allegations of criminal conduct (Nixon resigned before the House voted on the articles of impeachment recommended; Clinton was impeached in the House, and the Senate He was acquitted at trial). In 2019, special counsel Robert Mueller's report found that both a 1973 memo and a 2000 memo that reaffirmed the Justice Department's position on presidential immunity were precedents that would theoretically bar an indictment of Trump. But Mueller also denied finding any evidence to support criminal charges.

If the Supreme Court rules against Mr. Trump, it will recklessly overturn both the letter of the Constitution and half a century of careful precedent, as have Democratic jurists, and will preclude all future U.S. presidents. It would support a shaky prosecutorial theory that would expose it to distracting prosecutorial scrutiny. Legal proceedings that were expressly intended to be protected. The high court should make clear that Mr. Smith's prosecution is a political tool and stop our country from continuing to descend into a banana republic. Otherwise, all future presidents will spend their terms staring themselves in the eye or tied up in court, unable to perform executive branch duties due to allegations, real or frivolous. is possible. The Founding Fathers knew better.

Paul du Quenoy is the director of the Palm Beach Freedom Institute.

The views expressed in this article are the author's own.