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In Federalist No. 69, Alexander Hamilton explains the key difference between the "king of Great Britain" and the "President of the United States." A king, Hamilton explains, is "sacred and inviolable" and "there is no constitutional tribunal to which he is amenable." As a result, "no punishment to which he can be subjected without involving the crisis of a national revolution." The President of the United States, in contrast, can be "impeached" and "removed from office." Further, the President of the United States, after leaving office, is "liable to prosecution and punishment in the ordinary course of law."
This has been the common understanding for more than 200 years. That is why after President Richard Nixon resigned amid evidence of criminal conduct, he accepted a pardon from President Gerald Ford.
But Donald Trump, the prohibitive favorite to be the Republican Presidential nominee for a third time, has a radically different perspective. Trump is facing 91 felony counts for a variety of conduct, including the mishandling of national defense information, conspiracy to defraud the United States, and falsifying business records. Trump, in increasingly strident language, argues that he should have absolute immunity for any crimes he committed as President.
At a campaign rally in New Hampshire on Saturday, Trump argued that "[you] have to give a President full and total immunity." Otherwise, the President will be "unable to act" because "the opposing party will indict them for anything they do." Trump acknowledged that a "rogue" President — a "bad apple" — could take advantage of the situation. But, Trump claimed, "there is nothing you can do about it." A President, Trump says, has to be able to do what he believes "is the absolute right thing," regardless of whether it is a crime.
In a January 18 post on Truth Social, Trump made a similar argument, claiming that Presidents need immunity even for actions that "cross the line." Trump said, "Presidents must have complete and total Presidential immunity, or the authority and decisiveness of a President of the United States will be stripped and gone forever."
The implications of Trump's argument are clear. Trump is asserting that, if he wins the 2024 election, he has the absolute right to do whatever he wants. There will be no legal restraints to his conduct and no consequences. As Hamilton noted in 1788, that is how dictatorships function.
Could President Trump order the assassination of a political opponent?
Trump's attorneys are arguing that the felony charges against Trump related to his efforts to overturn the 2020 election should be dismissed on the basis of Presidential immunity. But, unlike Trump, his attorneys cannot argue that Presidents enjoy absolute immunity from all criminal prosecution. Why? Because Article 1, Section 3 of the Constitution acknowledges that Presidents can be criminally prosecuted:
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.
The Constitution says that even if a President is impeached, the President can still be criminally prosecuted afterward. Trump's attorneys have turned this argument on its head, arguing that a President can only be criminally prosecuted if they are impeached for the exact same conduct first.
During oral arguments this month at the U.S. Court of Appeals for the District of Columbia Circuit, Judge Florence Pan asked Trump's attorney: "Could a President who ordered SEAL Team 6 to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?" Trump's attorney, D. John Sauer, answered that a President could only be criminally prosecuted for assassinating a political rival if he was impeached and convicted first.
The appeals court appeared skeptical of this argument but has not yet issued a ruling. Whatever the outcome, it is likely to be appealed to the Supreme Court.
How Trump avoided conviction in the Senate
Trump was impeached for his efforts to overturn the 2020 election. But he narrowly avoided conviction in the Senate. During the Senate trial, Trump's lawyers argued that the Senate should vote to acquit because the matter could be dealt with criminally. David Schoen, one of the lawyers who represented Trump during his second impeachment, argued that a President who is not impeached could "clearly" be charged criminally after leaving office.
This argument is a complete canard. The Constitution expressly provides in article I, section 3, clause 7 that a convicted party, following impeachment, ‘‘shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law’’ [after removal]. Clearly, a former civil officer who is not impeached is subject to the same.
Schoen explicitly said the appropriate venue to consider whether Trump committed a crime was a court:
If my colleagues on this side of the Chamber actually think that President Trump committed a criminal offense…After he is out of office, you go and arrest him… The Department of Justice does know what to do with such people.
These arguments convinced several Republican Senators to vote against impeachment. Senator Mitch McConnell (R-KY), explaining his vote against impeachment, argued that Trump "is still liable for everything he did while he was in office, as an ordinary citizen" because "[w]e have a criminal justice system in this country" and "former Presidents are not immune from being held accountable." Senator Thom Tillis (R-NC) said, "[a]n impeachment trial is not the best or only way to hold a former elected official accountable for their actions. The ultimate accountability is through our criminal justice system where political passions are checked, and due process is constitutionally mandated. No President is above the law or immune from criminal prosecution, and that includes former President Trump." According to a brief by Special Prosecutor Jack Smith, at least 31 Republican Senators made similar statements.
A nation of laws
Trump argues that the nation can only function properly if the President has the right to violate the law. But, according to Supreme Court precedent, the opposite is true.
"No man in this country is so high that he is above the law," Supreme Court Justice Samuel Miller wrote in the 1882 case of United States v. Lee. "No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy and to observe the limitations which it imposes upon the exercise of the authority which it gives."
In other words, it is essential that a President (or other government official) stop to consider whether their actions are legal. In the 1982 case of Harlow v. Fitzgerald, the majority wrote that
"[w]here an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate."
Trump is arguing for a new framework that would allow him to do whatever he wants without worrying about consequences. In a recent interview with Sean Hannity, Trump said he would act as a "dictator" on his first day in office. On Saturday, Trump defended those remarks, saying he was just "having fun."
Trump also praised Hungary's authoritarian leader, Viktor Orban. "It’s nice to have a strongman running your country," Trump said.
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