The Founding Fathers Didn't Think Donald Trump Should Get Immunity Either | Opinion

Can former President Donald Trump, who faces federal felony charges relating to election interference, fraud, and the misuse of classified documents, be prosecuted for actions taken when he was in office? In a unanimous decision yesterday, the D.C. Circuit rejected Trump's argument that former presidents enjoy absolute immunity from prosecution. Constitutional text and history tell us that the court's decision was the right one.

First of all, no text in the Constitution states that presidents are forever immune from criminal prosecution, no matter what they might do to warrant it. And the Framers knew how to provide immunity when they wanted to. After all, they wrote that congresspeople shall be "privileged from Arrest" during legislative sessions, but, as the D.C. Circuit put it, "they chose not to include a similar provision granting immunity to the President."

And constitutional history explains why the Framers did not exempt the president from the criminal process. They hoped to distinguish the fledgling American democracy from Britain's monarchy by making clear that, unlike Britain's king, America's chief officer would not be above the law. James Iredell, who led the fight to ratify the Constitution in North Carolina, explained this in a 1788 speech: In Britain, the King "could do no wrong," and there were "no courts to try him for any crimes." In America, things would be different. If the president "commits any crime," Iredell said, "he is punishable by the laws of his country." James Wilson, a delegate to the Constitutional Convention and later a Supreme Court justice, summarized it succinctly: the American president was "far from being above the laws."

Iredell, Wilson, and the other Framers would be horrified at Trump's claims. At oral argument before the D.C. Circuit, Trump's lawyer said that if Trump ordered SEAL Team 6 to assassinate one of his political rivals, he could not be criminally prosecuted if he weren't also impeached for that conduct. This seems like the type of situation that the Framers, hell-bent on distinguishing the American president from the British king, wanted to avoid.

And this history has led constitutional law scholars across the ideological spectrum to conclude that presidents are subject to criminal prosecution even while in office. (Even scholars who disagree about that agree that the president can be prosecuted—they just argue that a president cannot be prosecuted until he leaves office.)

The court was also right to dispose of Trump's argument that he cannot be prosecuted because the Senate acquitted him at his impeachment trial. Once again, Trump's claim has no basis in constitutional text. The Impeachment Judgment Clause says that "Judgment in cases of impeachment shall not extend further than to removal from office ... But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law." By its terms, it only speaks to what happens to a party convicted by the Senate—it doesn't address what happens to a party who is acquitted. Written in an era when Britain's Parliament could impose punishments like banishment and "drawing and quartering," the Clause limited the kinds of punishments the Senate could impose, and then made clear that this limit would not tie the hands of the courts. Impeachment, Alexander Hamilton explained, would not "terminate the chastisement" of an offending officer if the officer had also committed a crime.

And this makes sense. The Framers, as one impeachment scholar put it, "did not regard impeachment and the criminal law as serving the same ends." As the D.C. Circuit explained, impeachment is a "political process that is instigated and overseen by Congress," and the results of that process can often be based on political issues rather than "factual innocence." For this reason, the Framers did not want the courts to be constrained by the Constitution's limitation on the Senate's ability to punish. Once again, the president was not, to quote a 1787 article supporting ratification, "above the reach of all Courts of law."

In this case, as in so many others, Trump is arguing that he can do whatever he wants, regardless of legal constraints. Fortunately, the courts have consistently recognized that no one, not even the president, is above the law.

Smita Ghosh is Appellate Counsel at the Constitutional Accountability Center, a public interest law firm and think tank dedicated to fulfilling the progressive promise of the U.S. Constitution's text and history. Previously, she was a fellow at Georgetown University Law Center and at the U.S. Sentencing Commission.

The views expressed in this article are the writer's own.