An unwritten law applies to America’s presidents. They can’t really do anything wrong, or at least commit a criminal offense, as long as they’re in the White House. That was the case with George Washington, and it was no different with Donald Trump. Presidents can impeached impeached by the House of Representatives, the lower chamber of the US Congress, and possibly convicted and removed from office by the Senate, the upper house – which has not yet happened either. As you could experience it recently with Trump.
The Republican was the only president to date who was the target of impeachment proceedings twice for recognizable breaches of the law, but was acquitted by the Senate for political reasons: The Democrats did not have enough votes together for the required two-thirds majority. No sitting US head of state has ever had to appear before a regular court. The presidents enjoy de facto immunity. The purely pragmatic justification for this is that otherwise they would probably be constantly busy with court proceedings and would no longer have time for a proper performance of their duties.
It’s different when the presidents leave office. From a legal point of view, they then have no different status than all other Americans. “From a purely formal point of view,” wrote the lawyer Paul Rosenzweig in the magazine a few months before a violent mob, at the instigation of Donald Trump, stormed the Capitol on January 6, 2021 Atlantic Monthly“there is no legal bar to impeachment of a president after his term in office.”
Republican Rosenzweig knows what he’s talking about. In the late 1990s, he was on the legal team tasked with investigating possible misconduct by then-Democratic President Bill Clinton. Among other things, it was about his sexual escapades in the White House. Before the end of his term, Clinton even admitted that he had lied about it under oath, i.e. committed perjury. But he was never prosecuted for it. With the payment of $25,000 to the Treasury, the matter was settled.
The only exception: a ticket for racing in a horse-drawn carriage
So far, there has also been a rule for ex-presidents that was not laid down in writing anywhere, but to which everyone adhered. Even after leaving office, they do not have to justify themselves in legal terms for possible misconduct. None of the 44 incumbents before Trump have ever been charged. There are also purely pragmatic considerations for this, as Rosenzweig wrote at the time. Democrats and Republicans alike see this as a guarantee that the “transfer of power from one party to the other will be peaceful.” As is well known, Trump did not adhere to this basis when he wanted to change the result of the most recent presidential election in his favor.
However, there has already been a small exception when it comes to prosecuting incumbent presidents. But the matter dates back a century and a half. She met Civil War hero Ulysses S. Grant. The ex-general was elected to the White House in 1869. Three years later, a black policeman stopped him in Washington in his horse-drawn carriage and warned him that the President had been going too fast.
When he caught him speeding again the next day, he arrested Grant, so the anecdote goes, with the words: “You are the head of the nation and I am nothing but a policeman. But duty is duty.” The President, a Republican, had to go to the police station, where his personal details were taken and he dutifully paid a $50 fine. This understanding of the law is likely to be foreign to Donald Trump.