As the issue of presidential immunity is appearing in the headlines, I gave it some quick thought from an originalist perspective, with this conclusion: I don't see any foundation in the Constitution's original meaning for presidential immunity for in-office conduct against federal criminal charges brought after the President has left office. (I'm skeptical of most other versions of presidential immunity as well, but I'll stick with that particular issue here.)
(1) Nothing in the Constitution's text says anything about immunity for ex-Presidents. Article I, Section 3 implies the contrary:
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.
There's no exception here for ex-Presidents (and one could have easily been added, if that were the intent), so it seems that a President removed from office can be prosecuted. (Hamilton said so expressly in Federalist 69.) Of course, Article I, Section 3 is just about impeachments, but if there's no immunity for an impeached ex-President, it's not clear how there would be immunity for a non-impeached ex-President. The point of the quoted language seems clearly to be that impeachment/removal would not change the ex-officer's criminal liability.
Further, there is an express (but very limited) immunity for members of Congress in Article I, Section 6: "for any Speech or Debate in either House, they [the Senators and Representatives] shall not be questioned in any other Place." Thus the absence of any mention of presidential immunity is especially notable.
(2) True, there was a historical background of executive immunity: the British executive/monarch had absolute immunity, and indeed "the king can do no wrong." (Blackstone, vol. I, pp. 238-39.) But I think this points in the opposite direction for the Constitution. It's often difficult to know when the Constitution implicitly adopted a background practice and when it rejected one — but here it seems quite clear. The founding generation in America associated the "can do no wrong" mantra with monarchy and expressly rejected it as anti-Republican. Again, Hamilton's Federalist 69 has this tone, noting that in contrast to the President, "the person of the King of Great Britain is sacred and inviolable" and there is "no punishment to which he can be subjected without without involving the crisis of a national revolution." The President, Hamilton continued, in such cases instead "would stand upon no better ground than a governor of New York" — who presumably did not have immunity.
(3) In modern law, supposed immunity of ex-Presidents from criminal prosecution mostly depends on an extension of Nixon v. Fitzgerald, which found immunity for ex-Presidents for civil suits (that is, claims for official actions brought after the President left office.) But Fitzgerald is a starkly non-originalist opinion — a typical early-1980s atextual Justice Powell opinion opening with the observation that:
any historical analysis must draw its evidence primarily from our constitutional heritage and structure. Historical inquiry thus merges almost at its inception with the kind of "public policy" analysis appropriately undertaken by a federal court. This inquiry involves policies and principles that may be considered implicit in the nature of the President's office in a system structured to achieve effective government under a constitutionally mandated separation of powers.
Ultimately, the Fitzgerald decision is grounded almost entirely on the proposition that it would be inconvenient for the President to have to worry about future civil suits while performing official duties. Perhaps so, but it's also inconvenient (to say the least) to have a President who's above the law, and balancing the two is a judgment for the Constitution to make, not for judges exercising judicial intuitions. And there are enough differences between private civil suits (which among other things aren't subject to the current President's prosecutorial discretion) and criminal proceedings that one can accept Fitzgerald as precedent but not extend it.
To be clear, I think there are serious problems with a sitting President using the power of federal prosecution against a political rival (especially a rival who seeks to retake the office). When the consequences of defeat include exposure to criminal prosecution, the stakes of the contest may be raised to unacceptable levels (as other countries have found to their regret). But that is a policy question, not a constitutional question, where the Constitution's original meaning doesn't speak to it.
At least, it's not a constitutional question for originalists. For nonoriginalists, it is — as everything is — a constitutional question, and, I would say, quite a difficult one.
Posted at 6:09 AM