Donald Trump’s Immunity Argument Contradicts Framers’ Intent

Donald Trump faces 91 felony counts for acts allegedly committed as US president, including events surrounding the riot at the US Capitol on Jan. 6, 2021. He has contended he’s immune from prosecution for any acts he committed while president. Is he? If history is any guide, the answer should be no.

As the framers drafted our Constitution, the prospect of an all-powerful king loomed in their minds. When they created the office of the presidency, they considered what checks could be placed on presidential power.

The constitutional framers saw three ways to confine abuses of power and corruption. One was the desire to run for reelection—if the president abused their power, they wouldn’t be selected again by the electors. A second option was impeachment or removal from office, and the third was criminal prosecution.

These three checks operate in tandem. The last few years have shown impeachment’s limitations in preventing presidential abuses of power. No US president has been successfully removed from office. And starting with Bill Clinton, through Trump, and perhaps even up to Joe Biden, impeachment has become a partisan tool rather than an effective check.

What about criminal prosecution? To determine whether a sitting president can be held criminally liable for actions committed while in office, we must break down the question in a couple of ways.

First, could a sitting president be indicted for crimes they allegedly committed? This was a novel question back in the 1970s concerning Richard Nixon. At the time, the Department of Justice and Solicitor General Robert Bork concluded a sitting US president couldn’t be indicted for crimes allegedly committed while president.

The argument was that the president was unique, and that incapacitating him with criminal indictments would disable him in very serious ways. Additionally, lack of immunity could lead to efforts to cripple the presidency, perhaps by bringing false charges.

However, those arguments never addressed whether a president accused of committing crimes could be liable once they’ve left office. On this point, we need to go much further back in time: What did the constitutional framers think about this issue?

English law was a major influence on US constitutional law and the framers. Among the most prominent of British legal writers was William Blackstone, whose “Commentaries on the Laws of England” was well-known to US legal scholars, including the framers.

Blackstone said the “king is incapable of doing wrong” and that kings possess sovereign immunity from wrongs committed as king. Yet his description of monarchial immunity was premised on the idea that the king was sovereign. Blackstone also said that in a democracy, the people are sovereign—thereby eroding this concept of immunity.

John Locke, whose “Second Treatise of Government” was largely the most influential work of political theory on the framers, also describes kings as limited in their powers subject to the social contract created by the people.

By the time the framers assembled in Philadelphia in 1787, they were well-aware of the problems of powerful executives, and inherited a body of law and political theory aimed at limiting such a person’s authority.

They also knew of the fights between the English parliament and the king, and shifting of power and sovereignty to the former—and of the people’s ability to hold the latter accountable for abuses of power, even while in office. As Alexander Hamilton said in Federalist Paper 69 of the president, “[T]here is a total dissimilitude between him and a king of Great Britain.”

The debates at the constitutional convention reveal a genuine concern to limit presidential power. Both James Madison’s “Notes of Debates in the Federal Convention of 1787” and Max Farrand’s “Records of the Federal Convention of 1787” attest to that. Discussing the necessity for presidential impeachment, George Mason asked, “Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?”

Benjamin Franklin, defending the need for presidential impeachment, said “History furnishes one example only of a first Magistrate being formally brought to public justice.” Madison too defended the need to guard against the “negligence or perfidy of the chief Magistrate.”

The consensus among Madison, Mason, Franklin, and others who attended the convention was that presidents didn’t enjoy unlimited power or immunity. They could and should be held accountable for their actions, with impeachment and criminal prosecution as possibilities.

Even if, as Franklin hinted, criminal prosecution perhaps wasn’t possible for a sitting president, nothing precluded it afterwards. The clearest statement of that is from Hamilton: “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.”

Finally, 19th century Supreme Court Justice Joseph Story’s “Commentaries on the Constitution of the United States” is considered a definitive early interpretation and examination of the Constitution. Regarding ways to limit presidential power, Story declared of a republic—compared with a monarchy—“[i]n such a government all the citizens are equal, and ought to have the same security of a trial by jury, for all crimes and offenses laid to their charge, when not holding any official character.”

If we apply all this original understanding and intent of the framers to Trump’s situation, it should be very easy to conclude he doesn’t have a case for immunity.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

David Schultz is professor of political science and legal studies at Hamline University and professor of law at University of Minnesota.

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