“They would have been 100% supportive of a former President being indicted if the evidence was clear."
On Thursday, a Manhattan grand jury voted to indict the 45th U.S. President Donald Trump, making him the first former President to face criminal charges.
The indictment, which has not yet been made public, is expected to be about his role in a hush money payment to Stephanie Cliffords, known as Stormy Daniels in her career as a porn star, during the 2016 presidential campaign. She says they had an affair; Trump denies that, as well as claiming he’s innocent of any criminal wrongdoing.
During this unprecedented moment in U.S. history, TIME called up several presidential historians to ask what the nation’s Founders might have thought about charging an ex-President with a crime.
The scholars agree that while the Founders probably would not have predicted the salacious underlying issue of this indictment, they took great pains to create a system of government that would hold bad actors accountable and prevent them from getting elected President.
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For Jack Pitney, Professor of Politics at Claremont McKenna College, Federalist Paper #51 comes to mind. The Framers of the Constitution wrote these pamphlets to explain the document to the public, and in #51, James Madison outlines the system of checks and balances—the measures that hold public officials accountable to the law and make sure one branch of government doesn’t become all powerful. “The Founders…didn’t anticipate that a president would commit this particular crime, but they were very much aware that bad people could ascend to high office, and that’s why they built an elaborate system of checks and balances between the branches at the federal level,” says Pitney. “I think if James Madison were to come back today, he would probably be shocked at the underlying activity of Trump, but not at all surprised that a local prosecutor would go after him for falsifying business records.”
Madison’s Federalist Paper #51 was also top of mind for Barbara A. Perry, Director of Presidential Studies at the University of Virginia’s Miller Center, specifically the famous line: “If men were angels, no government would be necessary.”
“In order to protect the governed from each other, and protect the governed from the governors, you have to establish both a constitutional system with checks and balances, as well as a legal system as one of the three branches,” Perry says. “What I’d like to think would happen, by asserting the laws of the state of New York, people would one, recognize that even a President or a former President is not above the law, or two, that the system is worth keeping and preserving and not have a person who takes a constitutional oath to uphold the system actively trying to undermine it.”
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There are also political implications to Trump’s indictment, as he’s currently a candidate for President again in 2024. While legal experts say he could still get elected under these circumstances, historians say the Founders were universally concerned about demagogues, and that was one of the reasons they created the Electoral College. “[Trump] is yet again demonstrating that he lacks the essential virtue that the Founders thought was necessary in the President, which was the virtue of virtue—which they defined as someone who was willing to put the public’s good ahead of their own,” says Jeffrey A. Engel, Founding Director of the Center for Presidential History at Southern Methodist University.
But the Founders also believed Presidents return to being average citizens when they left the White House, says Lindsay M. Chervinsky, author of The Cabinet: George Washington and the Creation of an American Institution. “They would have been 100% supportive of a former President being indicted if the evidence was clear,” says Chervinsky. “The concept that a former President is above the law would have horrified them. That legal status applies to monarchs, not Presidents in a republic.”