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Trump’s charge is unprecedented, but would not have surprised the Founding Fathers


Much has been made of the unprecedented nature of the arraignment of April 4, 2023 on criminal charges brought by former President Donald Trump in response to an indictment filed by him Manhattan District Attorney Alvin Bragg. But a closer look at American history shows that the indictment of a former president was not unexpected.

What the Constitution Says About Prosecuting a President

The authors of the Constitution considered the arrest of a current or former president. Since the founding of the country, our leaders have been taken to court on several occasions.

Article 1, section 3, of the Constitution says that when a federal government official is impeached and removed from office, he “shall nevertheless be liable and subject to charge, trial, judgment and punishment, according to law.”

In his defense of this constitutional provision, Founding Father Alexander Hamilton noted that, unlike the British king, to whom “there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected,” a president once removed from office could be “prosecuted and punished under 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 lawI believe that the punishment envisaged by our Founding Fathers for high office holders who were removed from office would also apply to those who have left office in other ways.

Tench Coxe, a Pennsylvania delegate to the Continental Congress from 1788–89, repeated Hamilton. He explained that while the The Speech and Debate Clause of the Constitution permanently immunizing congressmen from accountability 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 prosecuted like any other man in the ordinary course of law.

According to Coxe, even a sitting president could be arrested, tried and punished for breaking the law. And while Coxe didn’t say it explicitly, I would say it follows that if a president can be charged with a crime while in office, he can be held accountable like anyone else after his term.

The charges against Aaron Burr

Hamilton and Coxe’s positions were soon tested after the Constitution was ratified. The trial came when jurors were indicted in New Jersey Vice President Aaron Burr for killing Hamilton in a duel in that state.

An artist’s depiction of the duel between Burr and Hamilton on July 11, 1804. Hamilton was mortally wounded and Burr was charged with his death.
Ivan-96/DigitalVision Vectors via Getty Images

The indictment stated that “Aaron Burr, late in the town of Bergen, County Bergen, the petitioner had not in view the fear of God, but was moved and seduced by the instigation of the devil… criminally deliberately and by his premeditation an attack on Alexander Hamilton… [who] of the mortal wounds mentioned died.

While Burr’s powerful friends next brokered and persuaded state officials to drop the chargestheir success had nothing to do with any immunity 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 had ended, he had been arrested and charged with treason for conspiring to create a new and independent nation separate from the US. This time he stood trial and was acquitted.

The Strange Case of Ulysses S. Grant

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

The arresting officer said Grant“I am very sorry, Mr. President, that I have to do it, because you are the head of the nation and I am nothing but a police officer, but duty is duty, sir, and I will have to arrest you. .”

Like The New York Post recently told the story, Grant was “ordered to put up $20 as collateral.” But he never stood trial.

Precedents from the 20th and 21st centuries

Just over a century later, Republican Vice President Spiro Agnew had a more serious run-in with the law when he was accused by the Justice Department of a pattern of political corruption that began when he was a Maryland county executive and continued his tenure as vice president.

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

Surrounded by Secret Service agents, Spiro Agnew speaks to reporters outside a federal courthouse.
Spiro Agnew leaves a federal courthouse in Baltimore on October 10, 1973, after pleading not to contest the tax evasion charges and to resign as Vice President.
Bettmann via Getty Images

Richard Nixon, the president Agnew worked with, narrowly escaped indictment for his role in the Watergate burglary and cover-up. In 2018, the National Archives released documents, titled the Watergate Road Map, showing how close Nixon had come to the indictment.

The documents to reveal that “a grand jury intends to charge Nixon with bribery, plot, Obstruction of justice And obstruction of a criminal investigation.” But no charges were ever brought because by then the views of Hamilton and Coxe had been replaced by the belief that a sitting president should not be indicted.

Nixon was later bailed out of criminal charges after leaving office when his successor, President Gerald Ford, granted him a full pardon.

Another occasion where a president was about to be charged with a crime occurred in January 2001, when, as an article in The Atlantic notes, Independent Prosecutor Robert Ray considered suing former President Bill Clinton for lying under oath about his affair with former White House intern Monica Lewinsky.

In the end, Ray decided that if Clinton publicly admitted “under oath to having been deceptive and evasive … he need not be charged.”

And in February 2021, after President Trump left office, minority leader in the Republican Senate Mitch McConnell acknowledged that the former president, who was removed from office twice after being impeached, would still be legally responsible for anything he did while in office… We have a criminal justice system in this country. We have civil suits. And former presidents are not immune to being held accountable by either one.

What history teaches about the impeachment of Trump

This brings us to the present moment.

For any prosecutor, including Alvin Bragg, the indictment and arrest of a former president is a truly momentous act. As Henry Ruth, one of the prosecutors involved in the Nixon case, explained in 1974, “To sign the indictment against an ex-president is an act that one wants to be transferred to another, except oneself. This is true even when such an act, in institutional and legal terms, seems absolutely necessary.”

For the rest of us, the history of this country is a reminder that we are not the first generation of Americans called to deal with alleged misconduct by our leaders and former leaders.

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