Should former president Donald Trump be immune from federal criminal prosecution for his conduct in the run-up to Jan. 6? He’s argued both that his position as president should make him immune from prosecution and that because the Senate did not convict him after he was impeached, criminal charges would amount to a kind of double jeopardy. A federal district court has already thrown out those arguments. The special counsel, Jack Smith, has now asked the Supreme Court to fast track a decision.
The legal questions in this case aren’t close calls. The president is not above the law. Impeachment is not a criminal trial that would preclude subsequent prosecution. And Trump isn’t even in office, so there is no risk that his trial would disrupt the functioning of government.
The Supreme Court long ago ruled, in Clinton v. Jones, that even a sitting president may be subject to civil suits for conduct committed before entering office. The core principle underlying the court’s decision to let Paula Jones sue Bill Clinton is that the president is not above the law. Even a delay in Jones’s case until Clinton left office, the court ruled, would deny her justice.
The same principle of legal accountability applies even more strongly to criminal conduct. When a president commits crimes, it’s not just one injured party who has an interest in seeing justice done. It’s all of us. Federal crimes are, legally and morally, crimes against the United States.
The fact that Trump’s alleged crimes were committed while he was president is also no reason to grant him immunity. Quite the contrary. The president is required by the Constitution to take care that the laws be faithfully executed. Any criminal act committed by a president is necessarily a violation of his oath of office, committed outside the legal bounds of his authority.