Trump’s most ambitious argument in his bid for ‘absolute immunity’

There is almost nothing in the words of the Constitution to support even former President Donald J. Trump’s strongest defense against charges that he intended to overturn the 2020 election: that he is absolutely immune from prosecution for actions that he has undertaken during his term of office.

A federal appeals court will hear arguments on the issue next week, and the panel will consider factors such as history, precedent and the separation of powers. But, like the Supreme Court has recognizedthe Constitution itself does not explicitly address the existence or scope of presidential immunity.

In his appeal letterMr Trump said there was one constitutional provision that played a role in the analysis, although his argument is a legal guess. The provision, the impeachment clausesays officials impeached by the House of Representatives and convicted by the Senate are still subject to criminal charges.

The provision reads: “Judgment in cases of impeachment shall not extend beyond the removal from office and the disqualification to hold and enjoy any office of honor, trust, or profit under the United States: But the party convicted shall shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

The only thing the clause says in so many words is that “the party convicted in the Senate” can still be prosecuted. But Mr. Trump said the clause implied something more.

The clause “presupposes that a president is not may be convicted not be subject to criminal prosecution,” Mr. Trump’s letter said.

A friend-of-the-court note of former administration officials said Mr. Trump’s position had “far-reaching and absurd consequences,” noting that a host of officials are subject to impeachment.

“Under defendant’s interpretation,” the letter said, “the executive branch would not have the power to prosecute all current and former officials for acts while in office unless Congress first impeached and convicted them. That would allow countless public officials to avoid criminal liability.”

Mr. Trump also made a slightly more limited but still bold argument: “A president who is acquitted by the Senate cannot be prosecuted for the acquitted conduct.”

Trump was, of course, acquitted at his second impeachment trial, on charges of incitement of insurrection, when 57 senators voted against him, ten short of the two-thirds majority needed to convict.

The idea that the impeachment acquittal granted immunity from prosecution may come as a surprise to some of those who acquitted.

Take Senator Mitch McConnell, the Republican leader, who voted to acquit. Shortly afterwards, inside a fiery speech on the Senate floor, he said the justice system can still hold Mr. Trump accountable.

“We have a criminal justice system in this country,” Mr. McConnell said. “We have civil lawsuits. And former presidents are not immune from being held accountable by either.”

That suggests Trump’s reading of the clause is far from obvious, but the Justice Department has said it is not entirely implausible. In 2000, the Office of Legal Counsel was issued a 46-page memorandum dedicated solely to this question. It was called: “Whether a Former President Can Be Indicted and Tried for the Same Crimes for Which He Was Accused by the House of Representatives and Acquitted by the Senate.”

The argument that such prosecutions violate the Constitution “has some force,” according to the memo, which was authored by Randolph D. Moss, now a federal judge. But, the report continued, “despite its initial plausibility, we ultimately find this interpretation of the impeachment clause unpersuasive.”

It added: “We are not aware of any evidence to suggest that the framers and ratifiers of the Constitution chose the term ‘the condemned party’ with any negative implication in mind.”

More fundamentally, the memo said, “impeachment and criminal prosecution serve entirely different purposes.” Impeachment processes involve political judgments. Criminal cases involve legal processes.

In a short filed on SaturdayJack Smith, the special counsel, wrote that “acquittal in a Senate impeachment trial may reflect a technical or procedural finding rather than a factual conclusion.” The letter noted that at least 31 of the 43 senators who voted to acquit Mr. Trump during the impeachment trial said they did so at least in part because he was no longer in office and thus not under the jurisdiction of the Senate fell.

Trump’s reading of the provision “would be unlikely to produce perverse results,” Judge Tanya S. Chutkan, who is overseeing his trial in Federal District Court in Washington, wrote in a decision last month rejecting Mr Trump’s claim of absolute immunity.

She noted that the Constitution allows impeachment for a limited number of crimes — “treason, bribery, or other high crimes or misdemeanors.”

Under Mr. Trump’s reading, Judge Chutkan wrote: “If a president commits a crime that does not fall within that narrow category, and thus cannot be impeached and convicted, the president can never be prosecuted for that crime.”

“Alternatively,” she continued, “if Congress does not have the ability to impeach or convict a sitting president — perhaps because the crime occurred near the end of their term, or was covered up until after the president has left office – the first president could not be prosecuted in the same way.”

She added that President Gerald R. Ford’s pardon of former President Richard M. Nixon, who resigned as calls for his impeachment over his role in the Watergate scandal mounted, would not be under Mr. Trump’s reading would have been necessary.