Executive Accountability
In *Trump v. United States*, 603 U.S. 593 (2024), the Supreme Court held that a former president has absolute immunity from criminal prosecution for acts within his "conclusive and preclusive" constitutional authority, presumptive immunity for all other "official acts," and no immunity for unofficial acts — but that prosecutors may not use official acts as evidence even when prosecuting conduct the Court treats as unofficial. That evidentiary rule (Part III-C of the opinion, joined by five Justices and rejected by Justice Barrett in partial dissent) is doing most of the practical work: a president who launders a bribe through an official meeting, a pardon, or a Justice Department directive can now block prosecutors from telling the jury the official act happened at all. The predictable result is that any senior official who commits a crime through the machinery of office rather than off the books becomes harder to convict than one who commits the same crime as a private citizen. That is backwards. This amendment restores the ordinary rule that ran from the Founding until 2024: official position is not a defense to bribery, extortion, obstruction, or the other offenses listed below, and official conduct is not walled off from the jury.
Proposed Constitutional Amendment
§ 1
No person who holds or has held the office of President or Vice President, and no Cabinet officer, agency head, deputy agency head, senior White House official, senior executive official, or person exercising comparable federal executive authority, shall have immunity of any kind — absolute, presumptive, qualified, or derived from the character of the office — from criminal investigation, indictment, trial, conviction, sentence, or judicial process for bribery, extortion, obstruction of justice, witness tampering, destruction of evidence, election subversion, misuse of appropriated funds, sale of official acts, corrupt procurement of or corrupt use of a pardon, incitement of or material assistance to political violence, conspiracy against rights, fraud against the United States, self-dealing through official power, or any offense substantially equivalent to those offenses.
No act enumerated in Article II, including the pardon power, the power to direct law enforcement, the power to remove executive officers, or the command of the armed forces, confers immunity from prosecution for an offense listed in this Section.
§ 2
An act is not immune from prosecution, and evidence of an act is not inadmissible, merely because the act was performed through official authority, described in an official record, or characterized by a court as an official act.
Official communications, orders, directives, memoranda, pardons, enforcement decisions, budgetary acts, appointments, removals, classified actions, and emergency orders may be admitted as evidence, and may be examined by a jury, when relevant to an offense listed in Section 1, on the same terms as evidence in any other criminal prosecution and subject to ordinary rules protecting national security information, privileged communications, and due process.
No rule of evidence or procedure may exclude such material solely because of the official character of the act or actor.
§ 3No person may pardon, commute, or grant clemency to himself or herself for any offense
A purported self-pardon is void and of no legal effect.
This Section does not limit the authority of an Acting President under the Twenty-Fifth Amendment to grant clemency to another person.
§ 4
A pardon, commutation, reprieve, remission, or other act of clemency is subject to judicial review for validity when a court, upon credible evidence presented by a party with standing under law established by Congress, finds that the clemency was granted in exchange for a thing of value, to obstruct a pending or reasonably foreseeable investigation or proceeding, to prevent or influence testimony, to conceal evidence, or to complete or conceal an offense listed in Section 1 in which the person granting clemency, a family member, a campaign official, a donor, an administration official, a business associate, a foreign principal, or a co-conspirator was implicated.
A court making such a finding shall declare the clemency void to the extent of the corrupt purpose and of no further legal effect.
This Section does not authorize review of clemency on the ground that it was unwise, unpopular, disproportionate, or granted to a person with personal or political ties to the person granting it;
those grounds alone are not evidence of corrupt purpose.
§ 5
A declared national emergency, a covert or classified action program, a sanctions waiver, and a formal decision not to enforce a law or regulation against an identified class of persons or conduct shall each expire, as to prospective legal effect, unless renewed by the procedure Congress prescribes by law, at intervals Congress sets by law, when the action affects a constitutional right, the conduct of an election, a foreign policy or national security commitment of the United States, or an amount of public money exceeding a threshold Congress sets by law.
Expiration under this Section does not affect the validity of acts already completed, does not require the disclosure of intelligence sources or methods beyond what Congress provides by law, and does not override a judicial order.
§ 6
Congress may define by law the offices and officials covered by Section 1, the enforcement non-actions covered by Section 5, and the monetary thresholds referenced in Sections 4 and 5, and may establish by law expedited judicial procedures, classified-information protections, reporting duties, inspectors general and other independent oversight offices, protections for special counsel and other independent prosecutors, and civil and criminal remedies to enforce this article.
Nothing in this article limits Congress's existing authority to control the obligation and expenditure of appropriated funds, including the authority reflected in the Impoundment Control Act of 1974, or to structure succession to vacant offices, including the authority reflected in the Federal Vacancies Reform Act of 1998.
§ 7
This article does not create civil damages liability for a lawful policy decision, a good-faith legal judgment, or a disagreement over the exercise of discretion committed by law to an official.
It removes immunity only for the criminal misuse of official power described in Section 1, and it preserves every constitutional defense, procedural right, and burden of proof otherwise applicable in a criminal proceeding, including the privilege against self-incrimination, the right to counsel, and the requirement of proof beyond a reasonable doubt.
Implementation Schedule
This article applies to conduct occurring after the date of ratification and to clemency issued after the date of ratification; it does not reopen or revive prosecution for conduct that occurred, or clemency that was issued, before ratification. Within one year of ratification, Congress shall enact implementing legislation addressing, at minimum:
1. Standing and procedure for judicial review of clemency under Section 4, including the evidentiary standard for a finding of corrupt purpose and the courts with jurisdiction to hear such challenges; 2. The renewal procedure, timing, and congressional vote required to continue a national emergency, classified program, sanctions waiver, or enforcement non-action under Section 5, coordinated with existing reporting obligations under the National Emergencies Act, the International Emergency Economic Powers Act, and Title 50 covert-action reporting requirements; 3. Reporting and certification duties for agencies subject to Section 5, including protections against disclosure of intelligence sources and methods; 4. Definitions, by law, of "senior executive official," "senior White House official," "person exercising comparable federal executive authority," "formal decision not to enforce," and the monetary thresholds referenced in Sections 4 and 5; 5. Coordination with the Impoundment Control Act of 1974, the Federal Vacancies Reform Act of 1998, and the Inspector General Act of 1978, as amended, so that Section 1 liability for "misuse of appropriated funds" and self-dealing in personnel actions is defined against existing statutory duties rather than left to case-by-case inference; and 6. Funding and jurisdiction for inspectors general and special counsel to investigate conduct under Section 1, including protection from removal without the case-specific written rationale to Congress required by existing inspector general independence law.
Implementation notes
Implementation notes enter the public record when a released draft includes transition, enforcement, or severability instructions.