What the Nation’s Founders Said About the Indictment of a Former President

Alexander Hamilton wrote that a commander in chief removed from office would be “liable to prosecution and punishment”

Aaron Burr-Alexander Hamilton duel
In 1804, jurors in New Jersey indicted Vice President Aaron Burr for killing Alexander Hamilton in a duel. Burr’s friends persuaded state officials to drop the charges, but their success had nothing to do with any immunity that Burr enjoyed as an executive officer. Public domain via Wikimedia Commons

Much has been made of the unprecedented nature of former President Donald Trump’s April 4 arraignment on criminal charges following an indictment by a Manhattan grand jury.

But a closer look at American history shows that the indictment of a former president was not unforeseen.

What the Constitution says about prosecuting a president

The Constitution’s authors contemplated the arrest of a current or former president. At several points since the nation’s founding, our leaders have been called before the bar of justice.

Article I, Section 3 of the Constitution says that when a federal government official is impeached and removed from office, they “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

Tench Coxe
Tench Coxe Public domain via Wikimedia Commons

In his 1788 defense of this constitutional provision, Alexander Hamilton noted that, unlike the British king, for whom “there is no constitutional tribunal to which he is amenable, no punishment to which he can be subjected without involving the crisis of a national revolution,” a president once removed from office would “be liable to prosecution and punishment in the ordinary course of law.” Trump has been impeached twice but not removed from office.

As a scholar with expertise in legal history and criminal law, I believe the punishment our nation’s founders envisioned for government leaders removed from office would also apply to those who left office in other ways.

Tench Coxe, a Pennsylvania delegate to the Continental Congress from 1788 to 1789, echoed Hamilton. He explained that while the Constitution’s speech or debate clause permanently immunized members of Congress from liability for anything they might do or say as part of their official duties, the president “is not so much protected as that of a member of the House of Representatives, for he may be proceeded against like any other man in the ordinary course of law.”

In Coxe’s view, even a sitting president could be arrested, tried and punished for violating the law. Though Coxe didn’t say it explicitly, I’d argue that it follows that if presidents can be charged with a crime while in office, once out of office, they can be held responsible like anyone else.

The indictment of Aaron Burr

Hamilton’s and Coxe’s positions were put to an early test soon after the Constitution was ratified, when jurors in New Jersey indicted Vice President Aaron Burr for killing Hamilton in a duel.

An 1802 portrait of Aaron Burr
An 1802 portrait of Aaron Burr Public domain via Wikimedia Commons

The indictment charged that “Aaron Burr, late of the Township of Bergen in the County of Bergen, esquire, not having the fear of God before his eyes but being moved and seduced by the instigation of the Devil … feloniously, willfully and of his malice aforethought did make an assault upon Alexander Hamilton … [who] of the said mortal wounds died.”

While Burr’s powerful friends subsequently interceded and persuaded state officials to drop the charges, their success had nothing to do with any immunity that Burr enjoyed as an executive officer of the United States.

Indeed, Burr’s legal troubles were not over. In February 1807, after his term as vice president ended, he was arrested and charged with treason for plotting to create a new and independent nation separate from the U.S. This time, he stood trial and was acquitted.

The strange case of Ulysses S. Grant

Fast-forward to 1872, when the incumbent president, Ulysses S. Grant, was arrested in Washington, D.C. for speeding in his horse-drawn carriage.

The arresting officer told Grant, “I am very sorry, Mr. President, to have to do it, for you are the chief of the nation, and I am nothing but a policeman, but duty is duty, sir, and I will have to place you under arrest.”

As the New York Post recently recounted, Grant “was ordered to put up 20 bucks as collateral.” But he never stood trial.

A 1908 Evening Star​​​​​​​ article about Grant's arrest
A 1908 Evening Star article about Grant's arrest Newspapers.com

Modern precedents

A little over a century later, Republican Vice President Spiro Agnew had a more serious brush with the law when he was accused by the Department of Justice of a pattern of political corruption, starting when he was a county executive in Maryland and continuing through his tenure as vice president.

On October 10, 1973, Agnew agreed to a plea bargain. He resigned from his office and pleaded no contest to a charge of federal income tax evasion in exchange for the federal government dropping charges of political corruption. He was fined $10,000 and sentenced to three years’ probation.

Richard Nixon, the president with whom Agnew served, narrowly escaped being indicted for his role in the 1972 Watergate burglary and its cover-up. In 2018, the National Archives released documents, labeled the Watergate Road Map, that showed just how close Nixon had come to being charged.

The documents reveal that a grand jury planned to charge Nixon with bribery, conspiracy, obstruction of justice and obstruction of a criminal investigation. But an indictment was never handed down, because by that time, Hamilton’s and Coxe’s views had been displaced by a belief that a sitting president should not be indicted.

Spiro Agnew (center, holding microphone) in 1972
Spiro Agnew (center, holding microphone) in 1972 Public domain via Wikimedia Commons

Nixon was later saved from criminal charges when his successor, President Gerald Ford, granted him a full and complete pardon.

Another occasion on which a president came close to being charged with a crime occurred in January 2001, when independent prosecutor Robert Ray considered indicting former Democratic President Bill Clinton for lying under oath about his affair with former White House intern Monica Lewinsky.

Ultimately, notes the Atlantic, Ray decided that if Clinton publicly admitted to “having been misleading and evasive under oath … [he] didn’t need to see him indicted.”

And in February 2021, after Trump had left office, Republican Senate Minority Leader Mitch McConnell acknowledged that the former president, who had escaped being removed from office twice after being impeached, would still be legally “liable for everything he did while he was in office. … We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being [held] accountable by either one.”

What history teaches about Trump’s indictment

This brings us to the present moment.

For any prosecutor, the indictment and arrest of a former president is a genuinely momentous act. As Henry Ruth, one of the prosecutors who was involved in the Nixon case, explained in 1974, “Signing one’s name to the indictment of an ex-president is an act that one wishes devolved upon another but one’s self. This is true even where such an act, in institutional and justice terms, appears absolutely necessary.”

For the rest of us, this history is a reminder that ours is not the first generation of Americans who have been called to deal with alleged wrongdoing by our leaders and former leaders.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Austin Sarat is a political scientist at Amherst College. He is currently studying the phenomenon of botched executions, the fate of lethal injection as an execution technology and the ways stories of exoneration from death row are told in popular culture.

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