Donald Trump, who faces 91 felony counts for acts allegedly committed as the US president, including events surrounding the riot at the US Capitol on Jan. 6, 2021, has contended he’s immune from prosecution for any acts he committed while president. But if we look into history, the answer should be no.
The constituents during the drafting of our Constitution had the specter of an all-powerful king lodged in their minds. When they created the office of the presidency, they pondered over what checks could be placed on presidential power.
As per the constitutional constituents, three main checks on presidential power were identified. These included the desire to run for re-election, impeachment or removal from office, and criminal prosecution which were seen as measures to contain potential misconduct and corruption.
A question that had its inception in the 1970s, related to Richard Nixon, was whether a sitting president could be indicted for crimes they allegedly committed [1]. The Department of Justice and Solicitor General Robert Bork, proposed that a sitting US president couldn’t be indicted for crimes allegedly committed while president [2]. The premise: the president was unique, and that incapacitating him with criminal indictments would disable him in very serious ways.
The debates at the constitutional convention reveal a genuine concern to limit presidential power. 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.”
Flash forward to the present day, 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.
To delve further into this subject, the complete analysis of David Schultz, professor of political science and legal studies at Hamline University and professor of law at University of Minnesota, can be accessed here.