State Criminal Prosecution of a Former President: Accountability Through Complementarity Under American Federalism
Florida Journal of International Law, Vol. 24, No. 331-82, 2012
University of Toledo Legal Studies Research Paper No. 2013-05
53 Pages Posted: 12 Dec 2012
Date Written: December 3, 2012
With the end of the War in Iraq announced by sitting President Barack Obama in 2011 and the withdrawal of American troops by the end of December 2011, another opportunity arises for accountability for former President George W. Bush for instigating that war. Accountability can be imagined in many forms — international or foreign tribunal, domestic political accountability, or domestic criminal prosecution. Achieving accountability abroad or domestically for a former U.S. President has its challenges.
An unexplored avenue for accountability through complementarity in American federalism is the state criminal prosecution of a former President. This alternative path conducted in appropriate circumstances appears to be foreseen in our constitutional structure, assuring the double protection of the rights of the People as was envisioned by Alexander Hamilton and James Madison.
Keywords: President, War Powers, War in Iraq, AUMF, Complementarity, Separation of Powers, Federalism, Removal, Federal Officer Removal, Younger, Immunity, Preemption, State Secrets, UN Security Council, Political Question, Murder, Conspiracy, Defenses
JEL Classification: K33, K41, K42
Suggested Citation: Suggested Citation