United or Untied: On Confronting Presidential Criminality in the Savage Wars of Peace

11 Pages Posted: 20 Jun 2017

See all articles by Benjamin Davis

Benjamin Davis

University of Toledo College of Law

Date Written: June 19, 2017

Abstract

Hypothetical One: On her first day in office, invoking national security or some presidential power, a sitting president orders illegal surveillance of an American citizen in the United States based on information that came from torture ordered by that president and that same president orders a drone strike that kills that American citizen and another 100 American citizens and residents because the president hated that American citizen and did not care about anyone else in the line of her fire. That sitting president that same week goes on to cover up her actions in a manner that might be viewed as obstruction of justice.

Hypothetical Two: On his first day in office, invoking national security or some presidential power, a sitting president is caught selling crack cocaine out of the Oval Office of the White House and using the presidential limousine to travel to the nearby city of Silver Spring, Maryland to distribute it and stash the money he makes from these sales.

In either of those cases, in the absence of impeachment, removal pursuant to the 25th Amendment, or resignation, does the Constitution really require us to wait the four (and if re-elected eight) years a sitting president is in office before federal or state criminal prosecution? The current conventional wisdom appears to be that a sitting president cannot be criminally prosecuted in United States domestic courts. The argument of this essay is that the authors of that conventional wisdom are wrong as to the Constitution’s text. Moreover, the implicit arguments from domestic history, tradition, or Constitutional structure in favor of this view are certainly seductive but are derived from self-serving statements by those in or close to power. These reasonings insufficiently take into account the interests of the American people — the ordinary people far away from the centers of power yet subject to the action of a lawless president. Such implicit arguments from domestic history, tradition or Constitutional structure have a perverse result of leaving the American people for years at the mercy of a lawless and potentially profoundly destructive sitting president. These arguments leave the American people for years without the Hamiltonian people weighing in on the power rivalries, the Madisonian double protection of their rights foreseen in the Constitutional structure — a recipe for tyranny. In addition, particularly given the role of the United States in the world, this state of affairs of domestic impunity would have an impact on the international plane for years through leaving the world vulnerable to the actions of such a sitting president. In the absence of a constitutional order requiring such deference to a sitting president, the conventional wisdom would seem to be a rationalization that is both unnecessary and dangerous.

Keywords: President, Criminality, Separatino of Powers, Federalism, Immunity, Prosecution

Suggested Citation

Davis, Benjamin, United or Untied: On Confronting Presidential Criminality in the Savage Wars of Peace (June 19, 2017). 84 Tennessee Law Review (2017); University of Toledo Legal Studies Research Paper No. 2017-12. Available at SSRN: https://ssrn.com/abstract=2989221

Benjamin Davis (Contact Author)

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States

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