Trump argues that he cannot be prosecuted for actions he undertook when he was president. What would the framers have thought of this claim?
Rosemarie Zagarri: It’s highly unlikely the founding generation would have believed that a former president was immune from punishment for committing crimes, especially the kinds of crimes Trump is accused of committing. One of the defining features of a constitutional government is that all people, whatever their station or office, must be subject to the same laws. As Thomas Paine said in Common Sense, “[I]n America THE LAW IS KING. . . . [A]s in absolute governments the King is law, so in free countries the law ought to be King.”
Trump is attempting to act as a king above the law. Alexander Contee Hanson of Maryland, writing as “Aristides,” was confident that any president who engaged in bribery, corruption, or other crimes would have to face the legal consequences of his actions. “Like any other individual,” Hanson said, “he is liable to punishment.” In contrast to a monarch, the president, according to Alexander Hamilton, is not “sacred and inviolable.” Hamilton said that the president is as much subject to punishment as corrupt governors from states such as New York, Maryland, and Delaware were at the time of the founding.
The president must swear an oath to “preserve, protect and defend the Constitution of the United States.” Trump is charged with taking actions designed to undermine the constitutional process enabling the peaceful transfer of power — and thus violating the law. Accordingly, he should be liable for his actions. It is ludicrous to argue, as Trump does, that subverting the very system of constitutional government that the president is charged with upholding is something that the president can do legally, absent consequences.
Holly Brewer: There was broad agreement among the founders that presidents should be held accountable for their actions. One form of accountability is impeachment and removal by Congress. But the framers didn’t design impeachment to be an exclusive remedy, preempting criminal prosecution.
No doubt the framers thought that impeachment would make prosecution easier, because it would be difficult — no matter the circumstances — to prosecute someone in a position of power. Yet the framers envisioned prosecution as an ever-present possibility. And while Congress was authorized only to impose limited punishments on officeholders who have been impeached (namely, removing them from office), courts of law were — and are — permitted to impose the full range of punishments. This reflects the founders’ calculation that judges with lifetime appointments were less likely to be politically motivated to punish than members of the legislature who were likely to be more partisan.