The conventional wisdom is that even if Trump committed federal crimes, only Congress can address that wrongdoing by impeaching him. The prevailing view, embraced by the Justice Department’s Office of Legal Counsel and many legal academics, is that the president is immune from routine criminal prosecution by someone like a US attorney or a local district attorney. He could be charged for wrongdoing as president after leaving office, but not until after impeachment and removal, or resignation.
The thing is, though, this has never been tested before. And some legal scholars, like Hofstra University’s Eric M. Freedman, have argued that rank-and-file prosecutors can indeed indict and prosecute the president. It might be difficult for, say, the deputy US attorney for Southern New York who prosecuted Cohen, Robert Khuzami, to test the president’s immunity by securing an indictment. Trump could simply dismiss Khuzami from their post (US Attorney Geoffrey Berman has already recused himself from the Cohen case).
But state and local prosecutors don’t serve at the president’s pleasure the way US attorneys do. They’re typically elected or appointed by state or local politicians. So if Trump were to, as he’s jokingly threatened in the past, “stand in the middle of Fifth Avenue and shoot somebody,” then New York County District Attorney Cyrus Vance Jr. could indict him for assault or murder without fear of losing his job.
The case would be immediately appealed, and the question could be settled once and for all, most likely by the Supreme Court.
“If they did seek an indictment against the president, the president would almost certainly appeal right away,” Brian Kalt, a law professor at Michigan State University and author of Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies, told me in 2017. “Immunity arguments get reviewed right away, since the point of immunity is that you can’t be prosecuted — letting the trial go forward would moot the issue. It would go all the way up to the Supreme Court in short order, but that could delay things for a few months at least.”
“While I personally think the president is immune while in office, I concede that there are arguments on both sides and that it is unsettled,” Kalt continued. Now, with Trump, there’s a small but real chance that the Supreme Court might finally settle the matter. [Continue reading…]