“The House January 6 committee’s decision to issue criminal referrals against former President Donald Trump marks a return to old expectations about the rule of law and its equal application to all citizens,” writes Jeremi Suri. “The founders of our republic would approve.”
The House January 6 committee’s decision to issue criminal referrals against former President Donald Trump marks a return to old expectations about the rule of law and its equal application to all citizens. The referrals are advisory and the Department of Justice will ultimately decide whether to indict Trump, but the January 6 committee’s message is loud and clear. They believe the former president should be prosecuted for serious crimes against the country.
The founders of our republic would approve. In creating the executive branch of the US government in Article 2 of the Constitution, the founders included a mandatory oath that affirmed the president must be deferential to the law, not vice versa. The president must “preserve, protect, and defend the Constitution of the United States” – the highest law of the land.
What the founders feared most was a president who would wield his power as an unchecked king to serve his personal interests and those of his friends. That is why the founders kept the office of the executive small, gave Congress the power of the purse and subjected the commander in chief to election every four years. They expected presidents to be humble and limited in their power. The criminal referrals against Trump return our country to those wise assumptions.
As the president performs his duties, it is often impractical to try him for potential legal violations because of the limits of judicial access to confidential information. The Constitution, however, presumes that the president, like all other citizens, will ultimately be accountable for any crimes, even if that requires waiting until he leaves office. Impeachment and removal from office are political responses to misconduct, but they do not preclude other forms of legal accountability.
Criminal responsibility is the deterrent against arbitrary and corrupt behavior. The absence of any discussion of post-presidential legal privileges and immunities in the Constitution is revealing: former presidents are ordinary citizens, subjected to ordinary laws.
Over more than two centuries, there have been a number of cases where either a president or vice president has been subjected to criminal prosecution.
