In August 2023, former President Donald Trump was indicted in federal court in the District of Columbia on criminal charges related to his efforts to overturn the results of the 2020 Presidential election. The indictment alleged, among other things, that Trump conspired to defraud the United States by interfering with the counting and certification of the election results in several states and to obstruct the congressional proceedings to certify the election results on January 6, 2021, when a large group of Trump supporters stormed the U.S. Capitol.
Seeking to have the charges dismissed, Trump claimed that, as a former President, he is immune from criminal prosecution for acts while in office. Both the trial court and the appeals court rejected this view. The Supreme Court granted review. Together with the National ACLU, we urged the Court to reject the dangerous proposition that an elected head of state is above the criminal law—a position at odds with history, constitutional structure, and the rule of law.
It has long been presumed that while prosecuting a sitting President may be barred, prosecution after he leaves office is permitted. This assumption was reflected, famously, in President Ford’s pardon of President Nixon following the Watergate scandal. Indeed, at his second impeachment trial, even former President Trump himself suggested the possibility of criminal prosecution of a former President. In drafting the Constitution, the Framers carefully provided certain immunities, including for members of Congress attending sessions in the House or Senate chambers. But the Framers explicitly provided no immunities for the president. The separation of powers, and the rule of law on which it depends, would be undermined if Presidents were above criminal accountability. The United States does not have a king, and former presidents have no claim to being above the law. A functioning democracy depends on our ability to critically reckon with the troubling actions of government officials and hold them accountable. If the President is free, as counsel for Trump argued in court, to order the assassination of his political opponents and escape all criminal accountability even after he leaves office, then our constitutional system contains a fatal flaw that would-be tyrants will exploit—at the cost of our freedoms and the rule of law.
UPDATE: On July 1, 2024, the Supreme Court decided (6 to 3) that presidents are entitled to absolute immunity from criminal prosecution for actions taken within their core constitutional authority, and to presumptive immunity from prosecution for all official acts, but are not entitled to immunity for unofficial acts. After Donald Trump won the 2024 presidential election, the government dismissed the case, so we will not find out which (if any) of the charges were based on unofficial acts. The dismissal was “without prejudice,” however, so it is not impossible that some charges will be re-filed after January 20, 2029.