King Donald
The Supreme Court’s decision in Trump v. United States is of seismic consequence. The comments below compare certain findings in the majority opinion delivered by Chief Justice Roberts with the views expressed by Alexander Hamilton in Federalist Nos 69 and 70.
The Chief Justice proclaims that:
[U]nder our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient. [6] [emphasis added]
The majority believe that the separation of powers requires a former President to have “some” immunity from criminal prosecution for official acts. The use of the word “some” suggests that the immunity from criminal prosecution is limited rather than sweeping. The disconnect between this impression and what follows is astonishing. The President is accorded absolute immunity when exercising his or her core constitutional powers. He or she also has immunity for their “remaining official actions”. Whether that immunity is absolute or presumptive will be decided at a future point in the proceedings.
Federalist Nos 69 and 70
Having cast off rule by a monarch, the Framers of the Constitution did not want the Executive to be a de facto monarch. Alexander Hamilton, in Federalist No. 70, observed that:
In England, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the public peace, that he is unaccountable for his administration, and his person sacred … He is the absolute master of his own conduct in the exercise of his office, and may observe or disregard the counsel given to him at his sole discretion.
That said, the Framers did want a strong Executive. Hamilton regarded “[e]nergy in the Executive” as:
essential to the protection of the community against foreign attacks; … [and no] less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.
As to the President’s personal responsibility, in Federalist No 69, Hamilton contrasted the impeachment of the President with the inviolability of the king of Great Britain. He stated that:
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. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.
Clearly, Hamilton envisioned the President being subject to criminal law, unlike the king of Great Britain.
The fruit of the Framers’ work on the Executive is contained in Article II of the Constitution, which provides that “[t]he executive Power shall be vested in a President” and sets out the core constitutional powers of the President. These powers include: commanding the Armed Forces; granting pardons for offences against the US; and appointing the Justices of the Supreme Court, Executive Branch officers, and ambassadors, subject to confirmation by the Senate. The President must also “take Care that the Laws be faithfully executed”.
Hamilton did not advocate that the President required absolute immunity from the criminal law in exercising the core constitutional powers under Article II. This would have bestowed the king’s inviolability on the President. Hamilton argued for a strong President, not a de facto monarch.
The originalist practitioners comprising the majority part company with Hamilton in finding that:
[A]n Act—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. [8 - 9]
The majority is concerned that:
A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. [13]
Such concerns are not voiced either in Federalist No 69 or Federalist No 70. Perhaps Hamilton’s President was made of sterner stuff.
In her dissent, Justice Sotomayor is highly critical of the majority for its “single-minded fixation on the President’s need for boldness and dispatch” because it “ignores the countervailing need for accountability and restraint”. [30] In her view, '“[t]he Framers were not so single-minded”. [30]
Justice Sotomayor goes on to state:
In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines . . . all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” Ibid. The answer after today is no. [30]