Ask Jordan: Is the president above the law? Who can hold them accountable?

“Your last article, on the Justice Department policy against prosecuting sitting presidents, seems to point to a president being ‘above the law.’ My question is: Who then, if not the DOJ or Congress, brings the president to task when they violate the law?” — Bill

Hi Bill,

The Department of Justice and Congress both have a role to play in holding presidents accountable. Even the DOJ policy accounts for this. In fact, it accounts for the possibility of those institutions acting one after the other: Congress can impeach and remove a president who is then prosecuted by the DOJ when they’re out of office.

Of course, while the question of what conduct qualifies as impeachable is effectively up to Congress, the Supreme Court’s 2024 immunity ruling in Trump v. United States narrows the scope of conduct for which presidents may be prosecuted when they’re out of office.

That is, a president can be impeached and removed for conduct that’s immune from prosecution. The court didn’t explain in the Trump ruling exactly how far criminal immunity extends for former presidents, and we won’t know how far it goes unless and until another prosecution against a former president reaches the court.

In the meantime, when it comes to congressional or DOJ action, whether any such action comes depends, in part, on the personnel staffing each institution at a given moment. No one expects this Republican-led Congress to impeach and remove Donald Trump, nor would this DOJ seek to prosecute him.

But the upcoming midterm elections may change the congressional balance of power, and a president banking on a future DOJ not taking action is risky even after the immunity ruling. (The latter point raises untested questions about whether the president can pardon himself, a subject to which I’m sure we’ll return in the future.)

The reality is unsatisfying. As you suggest, it places presidents above the law. Indeed, there was some back-and-forth in the immunity ruling about that very phrase.

In his majority opinion, Chief Justice John Roberts wrote that the president “is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.” In a concurring opinion, Justice Clarence Thomas added that “the President’s immunity from prosecution for his official acts is the law.”

That logic failed to persuade a third of the nine-member court. Writing for the three Democratic appointees in dissent, Justice Sonia Sotomayor argued that the ruling “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. … In every use of official power, the President is now a king above the law.”

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