I noted earlier how Thomas Jefferson very clearly disagreed with the idea that the President was or should be immune from prosecution under the law, or above the law in any way. I also mentioned that as a general matter virtually every aspect of the authorship and debate over the Constitution was at war with the concept of presidential immunity outlined in the recent Supreme Court decision. A TPM reader reminded me further of this passage from Federalist 69, authored by Alexander Hamilton, certainly the Constitution architect and author most friendly to executive power.
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. In this delicate and important circumstance of personal responsibility, the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.
I should note that there are numerous citations in the Constitution and the debate documents around it that make this point. But this one is so crystal clear. This clause emphatically contradicts basically everything in the Supreme Court’s immunity decision. It not only states plainly that a former President once removed from office is subject to prosecution for the crimes for which they were impeached and removed from office. It also adds “in the ordinary course of law,” which makes clear that they bring no special rights, immunities or obstacles into the courtroom different from anyone else.
We don’t need to argue from silence. There’s lots of evidence, much of it, like this, specific and explicit, making clear that the people who wrote the Constitution and the public advocacy for it at ratification were crystal clear that former Presidents had no immunity from the law.
