Immunity or impunity?

Beyond the immediate drama, however, the case raises a much bigger constitutional question: does the Vice President enjoy immunity from criminal prosecution while in office?

For the President, the answer is long settled. Our Supreme Court has repeatedly held that an incumbent president enjoys immunity from civil and criminal suit during their tenure. The Vice President has never been expressly given the same protection.

Then came Duterte v. House of Representatives.

In that case, the Supreme Court spoke of a “limited procedural immunity” enjoyed by impeachable officials. There is a serious argument that this was obiter dictum, lawyer-speak for a statement in a decision that was not actually necessary to resolve the controversy before the Court.

Essentially, the Court reasoned that because certain constitutional officials may be removed only through impeachment, they should not be subjected to proceedings that could achieve the same result by another route, such as a criminal case that includes a penalty of disqualification from holding public office.

There is precedent for this. In the 1988 case In re: Gonzales, the Court held that Supreme Court justices could not, while in office, face criminal or administrative proceedings whose penalty would effectively remove them. The point was to protect judicial independence and prevent an impeachment from being circumvented.

Fair enough. But how far should this principle go?

Our Constitution creates 31 impeachable offices: the President, Vice President, 15 Supreme Court justices, 13 members of the three Constitutional Commissions and the Ombudsman.

Remove the President, whose immunity rests on a separate doctrine and we are talking about 30 people.

If this new doctrine is read broadly, are we really saying that all 30 can commit crimes in broad daylight but cannot be arrested and prosecuted while they remain in office?

Imagine a Supreme Court justice blatantly committing plunder. Or a Comelec commissioner openly shooting someone. Must the police and DoJ stand aside helplessly while that official leaves the country because Congress has not yet completed their impeachment?

Take the argument to its absurd extreme. Suppose a Vice President shoots the President on live television. If the criminal process must wait for impeachment, can the Vice President avoid arrest, take the oath as President, acquire full presidential immunity and remain there until Congress somehow removes the new President?

Ridiculous? Certainly. But a doctrine should survive difficult hypotheticals, not only easy cases.

The American rule is markedly narrower. The US Department of Justice has long taken the position that while a sitting president is uniquely immune from criminal prosecution, the vice president and other federal civil officers remain subject to indictment and prosecution while in office.

That strikes me as the more sensible balance.

Impeachment should protect constitutional offices from political harassment and backdoor removal. It should not become a temporary license to violate criminal laws.

And before we dismiss these examples as fantasies, edge cases “that will never happen,” remember where this discussion began: with an incumbent Vice President publicly talking about having a sitting President killed.

Two years ago, that hypothetical would have sounded ridiculous, too.