During Donald Trump’s second impeachment trial, three Republican senators, Mitch McConnell, Thom Tillis and John Cornyn, all voted not to convict Trump, saying that accountability for the January 6th insurrection should be in the hands of the courts, not Congress. As a key talking point, they noted that Trump was not immune from prosecution once he left office. Now that the question of Trump’s immunity is before the Supreme Court, Tillis and Cornyn have walked their statements back. Mitch McConnell has not. 

During Trump’s impeachment trial over his incitement of the insurrection, no senator claimed that the Constitution granted presidents total legal immunity. Comments by McConnell, Tillis and Cornyn all pointed to accountability in the courts, and reflect the mainstream consensus in January 2021:

Mitch McConnell: “President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run, still liable for everything he did while in office, didn’t get away with anything yet – yet. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.”


Thom Tillis: “An impeachment trial is not the best or only way to hold a former elected official accountable for their actions. The ultimate accountability is through our criminal justice system where political passions are checked and due process is constitutionally mandated. No president is above the law or immune from criminal prosecution, and that includes former President Trump.”


John Cornyn: “Given that the Constitution makes legal offenses committed while in office subject to investigation and prosecution, as warranted, after a President is no longer in office, I believe that is the Constitutional method of accountability – not impeachment”

Now that Trump is out of office, facing criminal prosecution and making the case that former presidents are immune from prosecution, Cornyn and Tillis have changed their tune. Tillis now says, “I could see arguments for and against the immunity discussion.” Cornyn, running for a Senate Republican leadership position now says, “I’m going to rely on the court.” 

Meanwhile, McConnell, who is retiring from his Senate leadership position, has not changed his mind. When asked on “Face the Nation,” he replied, “I stand by everything I said then. Obviously, it’ll be up to the Supreme Court to decide whether I was correct.”

Total immunity for former presidents would threaten both the rule of law and our democratic system of checks and balances. Among countless other nightmare scenarios, it would give a green light for the president to order the military to assassinate activists, political opponents, members of Congress or even Supreme Court Justices. And it would allow the president to order the occupation or closure of the Capitol or the Supreme Court itself. 

The fact that three key Republican senators understood that former presidents do not have legal immunity—and said that the courts should be the venue for accountability for the insurrection—shows how out of line Trump’s claim is. And Mitch McConnell’s refusal to backtrack on presidential immunity drives it home.

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