State Criminal Prosecution of a Former President: Accountability Through Complementarity Under American Federalism

53 Pages Posted: 12 Dec 2012  

Benjamin Davis

University of Toledo College of Law

Caroline Allen

University of Toledo - College of Law

Daniel DeSloover

University of Toledo - College of Law

Maria K. Fajardo

University of Toledo - College of Law

Jason French

University of Toledo - College of Law

Lindsy W. Gwozdz

University of Toledo - College of Law

James R. Hart

University of Toledo - College of Law

Zachary Hillyer

University of Toledo - College of Law

Holly Hillyer

University of Toledo - College of Law

Christina Koralewski

University of Toledo - College of Law

Dan Poignon

University of Toledo - College of Law

Kelly M. Rice

University of Toledo - College of Law

Faith R. Stover

University of Toledo - College of Law

Jay M. Wiseman

University of Toledo - College of Law

Date Written: December 3, 2012

Abstract

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

Davis, Benjamin and Allen, Caroline and DeSloover, Daniel and Fajardo, Maria K. and French, Jason and Gwozdz, Lindsy W. and Hart, James R. and Hillyer, Zachary and Hillyer, Holly and Koralewski, Christina and Poignon, Dan and Rice, Kelly M. and Stover, Faith R. and Wiseman, Jay M., State Criminal Prosecution of a Former President: Accountability Through Complementarity Under American Federalism (December 3, 2012). Florida Journal of International Law, Vol. 24, No. 331-82, 2012; University of Toledo Legal Studies Research Paper No. 2013-05. Available at SSRN: https://ssrn.com/abstract=2187402

Benjamin Davis

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States

Caroline Allen (Contact Author)

University of Toledo - College of Law

2801 W. Bancroft Street
Toledo, OH 43606
United States

Daniel DeSloover

University of Toledo - College of Law

2801 W. Bancroft Street
Toledo, OH 43606
United States

Maria K. Fajardo

University of Toledo - College of Law

2801 W. Bancroft Street
Toledo, OH 43606
United States

Jason French

University of Toledo - College of Law

2801 W. Bancroft Street
Toledo, OH 43606
United States

Lindsy W. Gwozdz

University of Toledo - College of Law

2801 W. Bancroft Street
Toledo, OH 43606
United States

James R. Hart

University of Toledo - College of Law

2801 W. Bancroft Street
Toledo, OH 43606
United States

Zachary Hillyer

University of Toledo - College of Law

2801 W. Bancroft Street
Toledo, OH 43606
United States

Holly Hillyer

University of Toledo - College of Law

2801 W. Bancroft Street
Toledo, OH 43606
United States

Christina Koralewski

University of Toledo - College of Law

2801 W. Bancroft Street
Toledo, OH 43606
United States

Dan Poignon

University of Toledo - College of Law

2801 W. Bancroft Street
Toledo, OH 43606
United States

Kelly M. Rice

University of Toledo - College of Law

2801 W. Bancroft Street
Toledo, OH 43606
United States

Faith R. Stover

University of Toledo - College of Law

2801 W. Bancroft Street
Toledo, OH 43606
United States

Jay M. Wiseman

University of Toledo - College of Law

2801 W. Bancroft Street
Toledo, OH 43606
United States

Paper statistics

Downloads
48
Abstract Views
438