As Reason‘s Jacob Sullum detailed earlier this week, one of the more alarming moments during the hearing over Trump’s immunity claim occurred when Judge Florence Pan asked whether a president could be “subject to criminal prosecution” if he’d ordered the assassination of a political rival. “According to Trump’s lawyers, a former president can be prosecuted for ‘official acts,'” Sullum explains, “only if he is first impeached by the House and convicted by the Senate based on the same underlying conduct.”
Trump was, of course, impeached by the House for his role in trying to overturn the election, but he was not convicted by the Senate. But if a president ordered the assassination of a political rival, surely he or she would be impeached and convicted, right?
Not necessarily—at least according to Trump’s legal team.
As Cato Institute legal expert Walter Olson pointed out on X (formerly Twitter) this week: Recall that during Trump’s second impeachment trial, part of the former president’s defense was the claim that he literally couldn’t be impeached because he was no longer president—even though the underlying, potentially impeachable conduct occurred while he was in office.
Thankfully, the federal judges hearing Trump’s immunity claim seemed to be pretty skeptical of the idea that a president is immune from prosecution without having been previously convicted by the Senate. But let’s assume they end up buying that bit of convoluted reasoning. The result would be a wild legal loophole that could allow anyone—yes even you—to get away with murder.
Here’s how to do it.
First, become president. This is almost certainly the most difficult step in the process.
Second, order the assassination of your political rivals—or annoying neighbors, anyone who has ever wronged you, Mike Pence, random people in the middle of 5th Avenue, and so on. This legal paradox means there are effectively no limits on how much murdering you do, and the crimes don’t even have to be done secretly. You can tell the whole world that you, the current president of the United States, ordered a bunch of assassinations.
(And keep in mind: there are more than 200,000 armed federal agents under your command. Many would likely object, but surely you’d be able to find a few who are willing to just follow orders.)
Third, and here’s the key part: Immediately resign from the presidency.
You’ll likely be arrested and arraigned on a wide variety of charges carrying the possibility of many, many years in prison. Ah, but have you been impeached by Congress for this conduct? Nope, and that means (according to Trump’s legal team) that you can’t be convicted.
And you’re no longer president! Therefore, according to Trump’s legal team, you can’t be hauled in front of Congress to be impeached and convicted so you can later face criminal charges. Congratulations, you’ve gotten away with murder.
It’s almost as if it’s a bad idea to grant immunity to someone solely on the basis that their potentially criminal conduct occurred while they were acting in an official capacity.