Gary Schmitt at AEI writes about James Wilson and presidential immunity from prosecution:
Let’s begin with Wilson’s response to Edmund Randolph’s complaint, late in the Constitutional Convention, that the president’s pardon power was too broad. It was, the Virginia governor said, “too great a trust,” especially when it came to “cases of treason.” Randolph was concerned the president might employ the pardon power for “Traytors [who] may be his own instruments” and, hence, hide his own role when he “may himself be guilty.”
In response, Wilson argued that a timely pardon in case of treason might be necessary in a time of crisis. Further, and most importantly, Wilson explained that, if the president was “a party” to such treasonous plots, he could “be impeached and prosecuted.”
Some have read Wilson’s statement that a president could be “impeached and prosecuted” as referring not to the separate process of impeachment and criminal prosecution, but, instead, to a president being impeached by the House of Representatives and being convicted by the Senate. However, during the debate over the draft Constitution in the Pennsylvania ratifying convention, Wilson rejects the idea that “the first magistrate” retains “a single privilege or security that does not extend to every person throughout the United States.” “Far from being above the law,” Wilson argues, the president “is amenable to them in his private character as a citizen, and in his public character by impeachment.” In other words, impeachment is a political act that is distinct from a criminal proceeding and, as such, whether a president is removed from office or not, he or she is still liable for criminal acts. Moreover, if Wilson’s comments in the Convention are to be taken seriously, a president can be prosecuted for acts even when done under the “color of the law”—as for instance when a president exercises an Article II authority (here, the pardon power) to cover up a crime.
