Whether or not Donald Trump is impeached and removed from office or acquitted by the Senate, Alexander Hamilton has one or two things to say about Trump’s subsequent fate, and Trump isn’t going to like it. Donald Trump’s lawyer, William Consovoy, recently claimed that, while Donald Trump may be immune from prosecution no matter what crimes he commits while president, “This is not a permanent immunity.” If you’re wondering where that impermanence of immunity resides, Alexander Hamilton spells it out in The Federalist Papers number 65:
The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.
In other words, once ejected from office, the offender (Trump) must still face any criminal “prosecution and punishment in the ordinary course of law.” So presidential immunity explicitly does not cover him after he leaves office. And since the trial in the Senate does not constitute a criminal trial, neither is Trump protected by the Constitution’s Fifth Amendment guarantee against double jeopardy, that is, that a defendant may not be tried twice for the same crime.
This is a subtlety that frequently gets missed in the examination of Trump’s impending impeachment. The importance of the fact that the Senate trial will not be a criminal trial is often, and possibly conveniently, overlooked by Senate Republicans for reasons of propaganda. The legal standard of criminal conduct simply does not apply here. It is not necessary that Trump’s engagement of a foreign power and withholding funds in exchange for dirt on a political opponent be in and of itself criminally illegal. All it needs to be is an abuse of power, and abuse of power is anything the Congress, and ultimately the Senate, decides it is. Whether or not it constitutes a criminal act is up to federal prosecutors once Trump leaves office.
Of course, individual criminal acts from Trump’s long history of criminality may or may not be included in the articles of impeachment against him. Whether they are or not Trump will be exposed to the full weight of criminal law when he leaves office, and there is nothing to protect him from criminal prosecution on that account. We know this because Alexander Hamilton says so.
Robert Harrington is an American expat living in Britain. He is a portrait painter.