The Framers of the US Constitution were well-versed in the separation of powers doctrine. In Federalist No. 47, James Madison warned that:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
He went on in Federalist No. 48 to state with great force that:
An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.
As the bulwark against despotism, the Framers “divided and balanced” power between three branches of government: Congress (Article I), the Executive (Article II), and the Judiciary (Article III). The branches would restrain each other from exceeding their “legal limits” under the Constitution.
The majority in Trump v. United States proceeded on the unstated premise that the Framers erred at the Constitutional Convention in 1787 by not accounting for the constraints that Congress could place on the President through exercising its power to legislate. The majority dealt with this “oversight” 237 years later by constructing an immunity regime out of whole cloth. Would the Framers be red-faced at their failure to insert an immunity clause? Certainly not. If they could be red-faced now, it would be with apoplexy at the damage done by the majority to the separation of powers.
The Framers did intend that Congress would restrain the power of the President. Article II, Section 4 provides that:
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.
Article I, Section 2 provides that the House of Representatives has the “sole Power of Impeachment.” Article I, Section 3 gives the Senate the “sole Power to try all Impeachments.”
Article I, Section 3 further provides that:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. [emphasis added]
The text in italics makes clear that the application of the criminal law is not excluded in relation to the crimes which can be the subject of impeachment.
In Federalist No. 77, Alexander Hamilton stated that the President’s exercise of power would be constrained by:
being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law.
It is clear then that the Framers believed the prosecution of the President “in the common course of law” for crimes such as treason should not be barred. The Framers did not exclude former Presidents from the reach of prosecution.
Further evidence that the Framers believed prosecutions would occur is to be found in Federalist No. 65, authored by Alexander Hamilton. He addressed at length why the Senate was chosen to conduct impeachment trials and canvassed the reasons why the Supreme Court was not the appropriate tribunal. In Hamilton’s view, involving the Supreme Court in impeachment trials would be unjust, given the Court’s potential role in a subsequent prosecution. He asked:
Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune?
In dissent, Justice Sotomayor criticised the majority for ignoring that “the Impeachment Judgment Clause cuts against its own position”. [6] In her view, there is no doubt that:
[The] Clause clearly contemplates that a former President may be subject to criminal prosecution for the same conduct that resulted (or could have resulted) in an impeachment judgment—including conduct such as “Bribery,” Art. II, §4, which implicates official acts almost by definition. [6]
In dissent, Justice Jackson warned that:
From this day forward, Presidents of tomorrow will be free to exercise the
Commander-in-Chief powers, the foreign-affairs powers, and all the vast law enforcement powers enshrined in Article II however they please—including in ways that Congress has deemed criminal and that have potentially grave
consequences for the rights and liberties of Americans. [20]
The grave consequences may extend globally.
Thank you Mark. Pithy, precise and crystal clear.