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

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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.