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Immune from Prosecution? No.

In a recent oral argument, an attorney averred that in order to be prosecuted criminally for acts done while president of the United States, the individual would need to be impeached and convicted first. This is, in a word, poppycock. The Constitution, Art. II sec. 4 says,

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

As was understood at the time of ratification as well as today, impeachment is a political, not a criminal, action. This idea of immunity unless and until impeached comes from Federalist 69. That document – printed in March, 1788, states, in relevant part, the following:

The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.

Federalist 69 was written, as all the Federalist Papers, as a means of convincing those eligible to vote to ratify the Constitution. This paper was written by Publius, a/k/a Alexander Hamilton. Maybe you’ve heard of him? In context, that sentence means something very different from a requirement to be impeached and convicted prior to being tried in a court of law for crimes committed while in office.

The paper itself seeks to calm the masses in regard to the powers of the Executive. Recall that this democracy thing, this self-rule concept, still had that untested idea smell. It was band box new. People feared the idea of electing anyone with that much power over the expanse of the newly unified (but wholly different and most untrusting) colonies. Hamilton, in Federalist 69, compared the powers of a president to those of a king. His argument was that, unlike a king, the president has no immunity from the law. He is beholden to the same laws of all people within the nation. THAT is the point of the whole paper.

It is in response to the Anti-Federalist Cato IV which points out the dangers of an all-powerful executive. It avers that the same foibles of a king would beset a president including: ambition with idleness, baseness with pride, the thirst of riches without labor, aversion to truth, flattery, treason, perfidy, violation of engagements, contempt of civil duties, hope from the magistrates weakness; but above all, the perpetual ridicule of virtue. (Prescient!!) This paper warns that concentrated power for longer than one year is a recipe for disaster.

Federalist 69 says you need to calm down. We are electing someone for four years – kings are in for life. He says there is no tribunal to which a king can be held accountable, but not so for this newly elected individual. He compares the governing documents of various states and notes that the president would be in a weaker position that the governor of Maryland or Delaware as their constitutions allowed at the time. Indeed, he declares,

…The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable.

In seeking to calm the Anti-Federalists - who we can thank for the Bill of Rights, by the way - Federalist 69 renders the presidency an office held by a fallible human subject to the laws of the land, not some high flying king. In other words, it is an egregious error to pretend that the only way to prosecute a president, past or present, who has committed a crime in office is to first get him out of office in a political manner. Federalist 69 says the opposite – it says that the person of the president is subject to punishment and disgrace. He is not immune. He is an ordinary citizen and, unlike a king, not at all above the law.

Hamilton, being the very strong-minded federalist, sought to quell the fears of the anti-federalists. Therefore, Federalist 69 was followed in very short order (like the same day) by Federalist 70. Federalist 70 rails against the idea of an oligarchy in the Executive and argues for one individual. In part, this is because when there is a group in charge, it is harder to pinpoint fault on any individual in the event of “pernicious measures”.

In arguing for a single magistrate in the office of the executive, Hamilton avers,

It is evident from these considerations, that the plurality of the Executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, secondly, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it.

What he is saying is one benefit of a single president is that we will know who to blame and punish when they commit offenses against the Constitution and the people. This is so far removed from 1) president commits a crime (maybe ordering Seal Team 6 to assassinate a political rival), then 2) the House orders an impeachment inquiry and tries the president (who is still in office and maybe killing more political rivals like, I don’t know, those in the House who want to impeach him or maybe those in the Senate who would convict) and 3) the Senate convicts the president of high crimes in an impeachment trial after which he can be arrested and tried in a court of law (if, in fact, anyone is still alive to perform these tasks).

It is preposterous to infer this extraordinary power into the job of the president. If anything, the Federalist Papers seek to ensure that this is not at all the case – that the president is no different in or out of office from any other American when it comes to criminal activity.

Indeed, Federalist 70 goes on to say that part of the reason for having one solitary magistrate is to control any madness and crimes, not to permit it:

When power, therefore, is placed in the hands of so small a number of men, as to admit of their interests and views being easily combined in a common enterprise, by an artful leader, it becomes more liable to abuse, and more dangerous when abused, than if it be lodged in the hands of one man; who, from the very circumstance of his being alone, will be more narrowly watched and more readily suspected, and who cannot unite so great a mass of influence as when he is associated with others. 

These are not difficult ideas. In a land of the self-governed where no one is permitted to have a title, where there is no hereditary monarchy, where there is a goal (if not actuality) of equality, no one is above the law regardless of the position he holds. If the president commits a crime in office, there is no prohibition to arresting him for that crime prior to any impeachment. Certainly, once he is out of office he can face criminal charges for criminal acts. There is absolutely nothing in the Constitution that says otherwise (indeed, the Framers - as flawed and as petty as they could be - were not known for committing criminal acts like, say, insurrection). The president - past or present - like any other criminal defendant, may have an affirmative defense to raise, which is a matter of law and not of politics and therefore must be adjudicated in a court of law.

One hopes that the republic is strong enough that courts will find most, if not all, criminal acts subject to prosecution.

As for Federalist 69 and 70, much like a former president, Hamilton loved the idea of power. He was not a supporter of voting rights for most Americans. He believed in a strong, centralized federal government. At the same time, while flawed as all human beings are flawed, he believed in honor and dignity and eschewed corruption in office. It is fair to say that he would be appalled by many acts by prior presidents of this country. And, it is almost without doubt that he would have advocated for prosecution of crimes such as the insurrection on January 6, 2021, especially by the chief magistrate of the executive branch. Afterall, what everyone warned against – whether federalist or anti-federalist - were kings and power mongers and tyrants and autocrats and demagogues.

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