How the Supreme Court rules on presidential immunity in former President Donald Trump’s effort to jettison his federal charges could have some collateral damage: Congress’ impeachment power.

At oral arguments in the case Thursday, Trump attorney D. John Sauer told the justices that the nation’s founders decided impeachment was the check on a president’s behavior in office — and not criminal prosecution.

But several justices and outside experts said Sauer’s arguments, taken together, laid out a diminished version of impeachment power, which normally allows Congress to remove a federal officer for treason, bribery or other high crimes and misdemeanors.

That rarely invoked power, used about two dozen times in the nation’s history, should instead have special rules for presidents, Sauer said.

Sauer told the justices that presidents could only face criminal charges once they are impeached and convicted in the Senate. At the same time, he said such a prosecution could only happen under criminal statutes that make a “clear statement” to explicitly include the president.

Justice Sonia Sotomayor said that argument “would bar the Senate from impeaching him for high crimes or a misdemeanor, because that means that he’s not subject to the law at all.”

“That’s a tautology you can’t escape,” Sotomayor said.

Michael Dreeben, arguing on behalf of Special Counsel John L. “Jack” Smith, told the justices that the argument could prevent criminal prosecution of a former president just because of timing.

If a president committed a crime near the end of their term, Congress may not be able to “crank up the machinery” in time to impeach, Dreeben said, and it’s an open question about whether presidents can be impeached after they have left office.

Gregg Nunziata, the executive director for the Society for the Rule of Law, said Trump’s lawyers construed both the impeachment clause and federal criminal law in a circular fashion that eviscerates both.

Trump’s arguments would have the effect of making the president nearly entirely above the law, said Nunziata, a former staffer for Sen. Marco Rubio, R-Fla., and the Senate Republican Policy Committee.

“It’s a multitude of arguments that if you can lay them all out next to each other, it’s really a structure for nearly complete unaccountability,” Nunziata said.

Trump’s view

Sauer argued that the founders preferred a president act without fear of prosecution rather than one who faced it constantly, in part citing a memorandum from the Justice Department’s Office of Legal Counsel in the 1970s.

“Keep in mind that the criminal prosecution of a president prior to impeachment contradicts, in our view, the plain language of the Constitution but also hundreds of years of history and what DOJ admits is the Framers’ intent,” Sauer said.

In response to a question from Justice Amy Coney Barrett, Sauer said that former presidents might not even face charges if they were impeached and removed from office for ordering an unsuccessful military coup.

“There would have to be a statute that made a clear statement that Congress purported to regulate the president’s conduct,” Sauer said.

Barrett also asked Sauer what would happen if a president managed to hide their crime until they left office, so there was no opportunity for impeachment. Sauer responded the “framers assumed that risk” rather than take the chance a president would face prosecution.

Dreeben highlighted to the justices that impeachment is an unwieldy tool to address presidential misconduct. “Those are political remedies that are extremely difficult to achieve,” he said.

Past impeachment

The former president’s attorneys made different claims during the 2021 impeachment trial of Trump following the Jan. 6, 2021, attack on the Capitol.

In response to a question from Sen. John Cornyn, R-Texas, Trump’s then-attorney Bruce Castor said the Constitution “makes very clear that a former president is subject to criminal sanction after his presidency for any illegal acts that he commits.”

Cornyn later issued a statement citing that answer as part of his reasoning for voting to acquit Trump. Others did as well, including Senate Minority Leader Mitch McConnell, R-Ky., who mentioned it in his speech after the impeachment trial ended.

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

McConnell and other Republicans also said they based their votes on procedural grounds — that the Senate did not have jurisdiction to convict a president who was no longer in office — and not as a judgment of Trump’s behavior.

But at the arguments last week, Sauer argued that Trump’s acquittal at the 2021 Senate impeachment trial should prevent him from facing criminal charges.

Trump last officially made that argument at the U.S. Court of Appeals for the D.C. Circuit, where it was rejected along with his other claims of immunity when a unanimous panel ruled against him in February.

It resurfaced as Sauer argued that the Constitution has enough checks in place to allow presidents some form of criminal immunity, and several conservative members of the court raised that in their questions to Sauer and Dreeben.

Historical context

Justice Ketanji Brown Jackson during the oral arguments pointed to a brief filed by legal scholars on impeachment, saying Sauer’s conception ran afoul of history.

That brief, filed by the Constitutional Accountability Center on behalf of a group of law professors, argued that the impeachment clause said nothing about making impeachment mandatory for later prosecution, and has not worked that way for the other impeachments in the country’s history.

“The Clause says nothing about the prosecution of an officer who was acquitted after an impeachment proceeding and instead merely confirms that an officer who was convicted via impeachment may face subsequent prosecution,” the brief said.

Stephen M. Griffin, a law professor at Tulane University Law School, said some justices seemed to be looking at the impeachment and prosecution argument backwards.

“The impeachment clause expressly contemplates answerability. It says there can be prosecution after the President leaves office. It specifically says that, so I just can’t follow their argument that impeachment is required first,” Griffin said. “That whole line of argument is ridiculous.”

Nunziata said the Supreme Court risked siding with someone who makes “legal arguments that are designed to get him out of whatever jam he immediately faces,” and not take care of the Constitution or the institution.

He said impeachment alone would “not really be a meaningful check” on a potentially lawbreaking president. The current political landscape makes impeachment nearly impossible, and it would only get more difficult.

“There were, I thought, a few justices who gave too much credence to the idea that impeachment is a meaningful check, at least as impeachment is currently practiced and certainly how it’s construed by the president’s counsel,” Nunziata said.