The Historical Case Against Absolute Presidential Immunity
The US Supreme Court will hear arguments on April 25, 2024 in the case of Trump v. US, a case which will determine whether the former president is immune from prosecution on charges related to trying to overturn the results of the 2020 presidential election. Historical evidence from the founding era indicates that it would be inconceivable to members of the founding generation that such a claim might be sustained. In devising the office of the president, the Framers of the US Constitution strove to guarantee that the Chief Executive would be not be an elected king. In addition, they wanted to insure that a sitting president would not be able to use his power to stay in office after defeat at the polls. To do so would essentially transform the presidency into a monarchy, or even worse, a despotism.
After a great deal of debate, delegates at the Philadelphia Convention constructed the Electoral College, as the vehicle through which the country would elect its president. According to Article 2, Section 1, Clauses 2 and 3, before the time of the presidential election state legislatures would meet to decide whether the state legislature or the people in their state would cast ballots for the state’s presidential electors. After the election, delegates in each state would meet and make a list of all persons voted for, and record the number of votes cast for each candidate. At that point, each state would sign and certify its list and send it to the US Capital; in particular to the President of the Senate (i.e,, the Vice-President). On the assigned date, the President of the Senate, in the presence of the Senate and House of Representatives, would open all the certificates and the votes would be counted. The candidate who secured the most electoral votes would become president; the candidate with the second most votes would become vice-president.[1]
Cumbersome though it was, this procedure was the product of intense debate and hard-fought compromises. [2] Among other things, it was meant to guarantee the peaceful transition of power from one president to the next. The system, according to Gouverneur Morris, was the “least liable to objection [and] . . . the mode least favorable to intrigue and corruption. . . [and] is least likely to terminate in violence and usurpation.”[3] Significantly, in creating this system, the framers made no provision for a sitting president to have any role in the process: he had no role in collecting the electoral votes, in counting the votes, or in certifying the outcome. According to Alexander Hamilton in Federalist #68, the election of the president would ultimately depend on the people’s choice via the Electoral College. Otherwise, he said, a sitting president might “be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence.” The peaceful transition of power, he added, “will also be secured, by making his [the president’s] re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice.”[4] A sitting president thus had absolutely no role—official or unofficial--in the process of selecting the president.
During the ratification debate, opponents of the Constitution (Antifederalists) expressed concern that the Constitution did not provide sufficient safeguards to prevent a president from becoming corrupt or refusing to leave office. Luther Martin of Maryland, for example, feared that although the president “was to be chosen for a limited time, yet [at] the expiration of that time if he is not re-elected, it will depend entirely on his own moderation whether he will resign that authority with which he was once been invested.” Anticipating that the sitting executive might have amassed “very numerous” supporters, Martin predicted that “these circumstances combined together, will enable him when he pleases, to become a King, in name, as well as in substance.”[5] An Antifederalist from Virginia, writing under the pseudonym of “Republicus,” was even more extreme, arguing that a sitting president “may not only perpetuate his own personal administration, but also make it hereditary.” [6]
Against the claims of their opponents, Federalists insisted that the Constitution provided more than adequate remedies for a president who violated his oath to the people and the Constitution. Under Article 2, Section 4, a corrupt president could be impeached. As a Virginia author writing in 1788 put it: If a sitting president should “at any time be impelled by ambition, or blinded by passion, and boldly attempt to pass the bounds prescribed to his power, he is liable to be impeached and removed from office.” Yet the process did not necessarily end there. “Afterwards,” the author noted, “he is subject to indictment, trial, judgment, and punishment according to law.”[7]
Yet members of the founding generation did not necessarily see impeachment or punishment under the law as the only—or even the most fundamental—check on presidential misbehavior. A sitting president faced the judgment of the people on his behavior at election time. If, in the people’s opinion, he had committed crimes, or betrayed their trust, they would turn him out of office. As Edmund Randolph pointed out at the Virginia Ratifying Convention in June 1788, there was “another provision against the dangers” of presidential corruption. “If discovered,” Randolph said, “he may be impeached. If he be not impeached, he may be displaced at the end of four years.”[8] Writing in 1803, legal jurist St. George Tucker agreed. Though confident that the people would choose a “faithful agent” as president, they had options if it turned out that they were “deceived in their estimate of his character and worth.” As Tucker put it, “the lapse of four years enables them to correct their error, and dismiss him in turn from their service.”[9] In other words, through their vote the people rendered a verdict on a president’s behavior while in office. As the Federal Farmer observed in 1788, “The great object is, in a republican government, to guard effectually against perpetuating any portion of power, great or small, in the same man or family; this perpetuation of power is totally uncongenial to the true spririt of republican governments.”[10] Thus a president who failed to respect the outcome of an election, or who attempted to interfere with the peaceful transfer of power, committed the ultimate crime against the people who are the basis of government.
Members of the founding generation expressed no ambiguity about the role of the sitting president in a presidential election: he had no role. It is beyond absurd to claim that efforts to undermine a presidential election or prevent the peaceful transfer of power can be construed as part of the president’s official duties, or that a former president enjoys immunity from prosecution for these alleged actions. This position has no basis in historical fact.
[1] US Constitution, Article 2, Section 1, Clauses 3 and 4.
[2] John P. Roche, “The Convention as a Case Study in Democratic Politics,” American Political Science Review 55:4 (Dec. 1961), 799-816; Max Farrand, The Framing of the Constitution of the United States (New Haven: Yale University Press, 1913), 160-175; Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution (New York: Oxford University Press, 2016), 226-238.
[3] Gouverneur Morris to the President of the New York Senate (25 Dec. 1802), The Founders’ Constitution, ed. Philip B. Kurland and Ralph Lerner (Indianapolis: Liberty Fund, 1987), 3: 554.
[4] Publius [Alexander Hamilton], The Federalist Papers # 68 (March 14, 1788).
[5] Luther Martin, “Genuine Information,” (1788), The Founders’ Constitution, ed. Philip B. Kurland and Ralph Lerner (Indianapolis: Liberty Fund, 1987), 4: 98.
[6] “Americus,” March 1, 1788, THE DOCUMENTARY HISTORY OF THE FIRST FEDERAL ELECTIONS, 1788–1790 (Gordon DenBoer, Lucy Trumbull Brown & Charles D. Hagermann, eds., 1976–1989) [hereinafter DOCUMENTARY HISTORY].Vol. V: 168.
[7] “Americanus I,” Virginia Independent Chronicle, Dec. 5, 1788, in Documentary History, 8: 203.
[8] Debate in the Virginia Ratifying Convention, June 17-18, 1788, The Founders’ Constitution, ed. Philip B. Kurland and Ralph Lerner (Indianapolis: Liberty Fund, 1987), 3: 515.
[9] St. George Tucker, Blackstone’s Commentaries (1803), The Founders’ Constitution, ed. Philip B. Kurland and Ralph Lerner (Indianapolis: Liberty Fund, 1987), 3: 521.
[10] Federal Farmer, No. 14 (Jan. 17, 1788), The Founders’ Constitution, ed. Philip B. Kurland and Ralph Lerner (Indianapolis: Liberty Fund, 1987), 3: 505.
Rosemarie Zagarri received her Ph.D. from Yale University and specializes in Early American history
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