The Constitution Meant Imprisonment, Not Immunity for Insurrectionist Politicians
The Founders and Framers Would Say No Immunity for Trump
Judges who advocate “originalism” (as many do on the U.S. Supreme Court (SCOTUS)) purport to answer questions about what the Constitution means by considering something like what the relevant parts of the Constitution meant to the people who wrote or ratified such parts. Originalists essentially psychoanalyze people who lived long ago—sometimes very long ago. Originalists look for evidence of what a multitude of people thought, and the evidence includes what some people said or did.
Many have written much about the hazards of originalism and about the difficulty of practicing originalism with fidelity to the truth. But the point of mentioning originalism now is merely to explain that much writing on Black-Collar Crime focuses on what people said and did long ago because that is what many SCOTUS justices do when they tell us what our Constitution means today.
We, too, should seriously consider the words and deeds of those who founded this nation and wrote and ratified our Constitution. We need not wait for SCOTUS to tell us what our Constitution means. We can see for ourselves.
John Adams and Thomas Jefferson afforded us excellent insights. They worked together to help lead Americans to kick a king, his judges and their Parliament out of America. Together, Adams and Jefferson (and a few friends) overthrew the existing governments of 13 colonies spanning a huge length of the eastern edge of a continent. Vast numbers of Tories—including the many people who previously held or enjoyed the perks of political power—soon fled the United States. Some new state governments promptly wrote laws essentially disqualifying remaining Tories from holding offices. The point here, however, is what happened after Americans finished fighting the British and the Tories.
No sooner was the United States of America independent of Britain than the United States promptly fell to pieces. Many state politicians persuaded many people that they did not need a strong union. State politicians persuaded Americans to stop thinking of the United States as their country and start thinking of their state as their country. State politicians persuaded many people that their interests would be best protected by state governments that were strong and nearly entirely independent of each other.
Naturally, state politicians took took the next natural (logical) step. Having neutralized their common threat, some states began to threaten (or be perceived as threatening) other states. No sooner were Americans independent of Britain than some started speaking of military action against some states or even civil war among states.
The Constitution was meant to prevent Americans from physically fighting against each other and to ensure Americans continued fighting and working for each other. But experience promptly proved that even the Constitution, alone, would not prevent Americans from physically fighting (or threatening to fight) each other.
Americans continued racking up rebellions, including Shay’s Rebellion, the Whiskey Rebellion and Fries Rebellion between 1786 and 1800. A significant number of Americans thought there ought to be a law against insurrections and rebellions . . . and so there was. But before considering the law, consider what led to it.
George Washington had risked his life and worked himself nearly to death in the service of the United States throughout the eight-year Revolutionary War and then his eight-year presidency. One of President Washington’s final great and selfless public acts was voluntarily surrendering political power.
Ferocious political battles ensued for the hearts and minds of the people to influence who would be elected America’s next president. The war of words between Federalists and Republicans in the 1790’s sheds a lot of light on “the freedom of speech” and “press” (in the First Amendment) to criticize (and even viciously attack) people in power. Such speech would not inspire much confidence. Such speech would prove how little confidence the Framers of the Constitution had in anyone who held or sought political power.
The electoral college ultimately elected the heads of two warring political factions to lead the (barely) United States. John Adams, head of the Federalist party, which emphasized ties with England, was elected president. Thomas Jefferson, head of the Republican party, which emphasized ties with France, was elected vice president.
Jefferson was part of the Adams administration, but he and his followers ruthlessly and publicly attacked the administration. Internal conflicts attracted foreign threats. Even former friends became feared enemies. While Jefferson and his Republicans attacked Adams and Hamilton and their Federalists on land, France attacked Americans at sea in the Quasi-War with France.
Fearing a full-fledged war with France, in 1798 the (primarily Federalist) Congress enacted and President Adams signed a federal statute: “An Act for the Punishment of Certain Crimes Against the United States.” That statute became known as the Sedition Act of 1798.
The Sedition Act of 1798 was most famous (or infamous) for the part of its Section 2 that criminalized speech. It criminalized “any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent” to bring any of them “into contempt or disrepute; or to excite against” any of them “the hatred of the good people of the United States.”
According to the law (and the Due Process Clause of the Fifth Amendment) no such writing could be considered criminal unless it had been proved (and found by a jury) to be “false, scandalous and malicious.” Even so, prosecutors and judges viciously and maliciously violated the law and the Constitution to prosecute and persecute critics without the requisite proof. But that’s a story for a different day.
The primary point in accentuating the foregoing is what many commentators have highlighted about it. It expressly protected the president (Adams, the Federalist ), but not the vice president (Jefferson, the Republican). It implicitly left the vice president exposed to criminal prosecution for criticism of Congress, the president, or the government of President Adams.
Section 2 of the Sedition Act of 1798 constitutes compelling evidence that many of the people who actually wrote or ratified the Constitution did not see the vice president (or the president) as being immune from criminal prosecution for conduct while holding office. Section 1 has garnered less attention, but it is equally relevant. Both sections expressly addressed the criminal conduct of “any person,” and nobody could rationally argue that a president or vice president was not a person.
Section 2 also made it a crime for “any person” to “stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States.” That language followed on the heels of Section 1, which made any of the following by “any person” a “high misdemeanor:”
[to] unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing or executing his trust or duty, and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not.
The words “high misdemeanor” being included in a federal criminal statute call to mind the words of the Constitution speaking to when a sitting president or vice president must be impeached, convicted and removed from office: “The President [or] Vice President [ ] shall be removed from Office on Impeachment for, and Conviction of” any “high Crimes and Misdemeanors.”