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IMPEACHMENT AND IMMUNITY  
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Daniel Lazare
January 6, 2026
The Democratic Constitution Blog
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_ Daniel Lazare argues that the Supreme Court's decision in Trump v.
United States (2024) follows the logic of an increasingly undemocratic
Constitution _

, Photograph by Balazs Gardi of The New Yorker

 

_Today is the 5th anniversary of the January 6 Capitol Hill
insurrection. We are republishing a 2024 article by Daniel Lazare that
discusses the constitutional obstacles to holding presidents
accountable, particularly the onerous impeachment clause. On July 1,
2024, the Supreme Court decided in Trump v. United States that sitting
and former presidents hold broad immunity for actions taken in
office._

Something is missing in the great debate over presidential immunity:
impeachment. Chief Justice John Roberts mentioned it only once in his
majority opinion, which is when he dismissed Donald Trump’s
double-jeopardy argument that his Senate acquittal for crimes related
to the January 6 coup attempt means that he can’t be tried a second
time in a lower court. But that was it. Sonia Sotomayor didn’t
mention it in her dissent, and neither did Ketanji Jackson.

All of which is strange for two reasons. One is that impeachment is
supposedly the first line of defense against a runaway presidency,
which is what Trump v. U.S., as the case is formally known, is all
about. So shouldn’t someone at least acknowledge that the mechanism
has failed?

The other is that if the Senate had voted to convict Trump, the
immunity issue would never have arisen in the first place. Unlike the
rest of the Constitution, Article II, Section Three, is crystal clear.
“Judgment in Cases of Impeachment,” it says, “shall not extend
further than to removal from Office, and disqualification to hold and
enjoy any Office of honor, Trust or Profit under the United States:
but the Party convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, according to Law.”

That means that while the Senate can’t send anyone to jail on its
own, it can open the door to prosecution by voting to convict. So if a
two-thirds majority had said yes back in 2021, then federal
prosecutors would have been free to throw the book at Trump without
having to worry about the consequences in terms of presidential power
and independence. The system would have worked, the
conspirator-in-chief would have been made answerable for his crimes,
and, if convicted, he would presumably have gone to prison for a long,
long time. All would be equal before the law. It’s only because the
mechanism failed that the Court is now tying itself up in knots over
the question of when a president is criminally liable and when he
isn’t.

So why did the clause fail? And why isn’t anyone talking about it
afterward?

The second question is easy. The Supreme Court is a creation of the
Constitution. (See Article III for further details.) Since it exists
under it, its job is to interpret rather than question or criticize.
Its duty is to hold its tongue even in the face of obvious structural
shortcomings. The same goes for elected officials. Since every last
one of them is “bound by Oath or Affirmation, to support this
Constitution,” to quote Article VI, they are also constitutionally
barred from questioning it in any fundamental way.

It’s like some broken-down rattletrap that can barely make it out of
the garage. As long as everyone vows that the family car must be
“more perfect” with each passing year, then no one is allowed to
say a word when the wheels fall off or the brakes cease to function.
They’re not even allowed to notice. All they can do is thank the
founders for providing them with such a wonderful vehicle in the first
place.

The answer to the second—why the impeachment clause flunked the test
after the Capitol Hill insurrection—requires a bit more thought.
Obviously, the two-thirds hurdle is too high. Given that the Senate is
organized on the basis of equal state representation, it means that 34
senators from 17 states representing less than eight percent of the
population are enough to acquit. 92 percent of Americans may agree
that Donald Trump is a threat. But the Constitution condemns them to
inactivity as long as one person in 13 refuses to go along.

The solution therefore seems clear: lower the barrier. After all,
two-thirds is a figure that the founders plucked out of thin air. So
why not make it three-fifths, four-sevenths, or a simple majority?
That should be enough to stop presidential wrongdoing in its tracks.
But there’s a problem, and it isn’t just an amending clause that
allows an even smaller minority—4.4 percent according to the latest
census data—to veto any and all efforts at reform. Rather, the
structure, in general, is so tightly constructed and so
well-integrated as to effectively rule out a structural change of
nearly any sort.

After all, a two-thirds barrier means that the chief executive can do
just about anything he wants short of assassinating the speaker of the
House in the middle of a congressional session. Since conviction is
close to impossible, presidential independence vis-à-vis the other
two branches is assured. But if we lower the barrier to three-fifths,
he becomes less independent and more easily threatened. The separation
of powers is reduced. If we lower it to four-sevenths, the effect is
even more pronounced. And if we lower it to a simple majority, then
the governing structure begins to resemble a parliamentary democracy
in which the legislature calls the shots and the president is reduced
to little more than a figurehead.

This is profoundly un-American since the revolution that created the
U.S. nation-state was a rebellion against parliamentary government.
The king had grown too weak according to a school of thought known
variously as 18th-century “republicanism” or the “Country
opposition,” while the House of Commons had grown too strong.
Balance should be restored. A dozen years after Bunker Hill, the
founders, therefore, set about building an elaborate contraption
filled with all sorts of counterbalances and offsetting mechanisms so
as to create an executive branch that was strong but not too strong
and a legislature that was incapable of ruling on its own. The upshot
centuries later is a democracy that is lost in the wilderness as the
government grows more and more counter-majoritarian. No one can change
a thing for fear that the entire apparatus will collapse in a heap.

Given all that, Robert’s opinion
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“sense” in that it is essentially in keeping with a larger
structure that grows more undemocratic by the day. Since the
independence of the executive branch must be preserved, interference
by the judicial branch must be constrained. Even if the president
orders the Air Force to bomb and strafe Capitol Hill, the courts
won’t be able to do a thing unless the Senate follows proper
constitutional procedure by holding an impeachment trial and voting to
convict. If that is what “the supreme law of the land” says, then
that is what we must do.

This is why people go to law school—so they can utter such inanities
with a straight face. The Sotomayor-Jackson opinions, meanwhile, make
no sense whatever because they try to turn the Constitution into
something it is not, i.e., an instrument of democracy.

“[T]he president ... represent[s] all the voters in the Nation,”
Sotomayor’s dissent says at one point, quoting a 1983 case called
Anderson v. Celebrezze; “...his powers are given by the people under
our Constitution.” The statement is breathtaking considering that
two of the last four presidents took office against the people’s
express will. Says Jackson: “If the structural consequences of
today’s paradigm shift mark a step in the wrong direction, then the
practical consequences are a five-alarm fire that threatens to consume
democratic self-governance.”

But what democratic self-governance is she talking about? She
continues:

“The Court has now declared for the first time in history that the
most powerful official in the United States can (under circumstances
yet to be fully determined) become a law unto himself. As we enter
this uncharted territory, the people, in their wisdom, will need to
remain ever attentive, consistently fulfilling their established role
in our constitutional democracy, and thus collectively serving as the
ultimate safeguard against any chaos spawned by this Court’s
decision. For, like our democracy, our Constitution is ‘the creature
of their will.’”

But how can the people serve as “the ultimate safeguard” when the
Constitution has reduced their power to the vanishing point? How can
the Constitution be “the creature of their will”—Jackson is
quoting a famous 1821 case called _Cohens v. Virginia_—when they
have never had a chance to vote yea or nay on it as a whole?

It’s worth noting at this point that Forrest McDonald, a well-known
historian of impeccably conservative credentials, calculated in 1965
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that just 160,000 voters, barely four percent of the U.S. population
at that point, took part in state ratification elections in 1787-88.
Since every last one of them was a property-owning white male as far
as anyone can determine, the vote hardly qualifies as democratic by
modern standards. The bottom line is that the Constitution has never
been democratically approved before or since. It is not the creature
of anyone’s will other than that of a tiny 18th-century elite. On
the contrary, it is a big fat _fait accompli_ that no one knows what
to do about, even though it is squeezing the lifeblood out of society.

Sotomayor’s rhetoric is stirring. Now that the Court says the
executive is immune from prosecution, she notes that the president can
do just about anything he wants without having to worry about the
legal consequences. “Orders the Navy’s Seal Team 6 to assassinate
a political rival?” she asks. “Immune. Organizes a military coup
to hold onto power? Immune. Takes a bribe in exchange for a pardon?
Immune. Immune, immune, immune.”

“With fear for our democracy, I dissent,” she concludes. But fear
is beside the point at this late date since democracy has been in the
grave for a generation. All the immunities decision does is shovel a
bit more dirt onto the coffin.

_DANIEL LAZARE is the author of, most recently, The Velvet Coup: The
Constitution, the Supreme Court, and the Decline of American Democracy
(Verso).He is currently at work on a book about the politics of
Christianity, Judaism and Islam for Pantheon._

_THE DEMOCRATIC CONSTITUTION BLOG is a reader-supported publication.
To receive new posts and support our work, consider becoming a free or
paid subscriber._

_Subscribe to The Democratic Constitution Blog_
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* January 6
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* Insurrection
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* Washington DC
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* impeachment
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* Presidential Immunity
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* Senate
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* justice
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* Constitution
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