Can a sitting president be indicted? Two eminent constitutional scholars have tried in the past few days to answer that question. One, Chapman University’s Ronald Rotunda, said yes. The other, Harvard’s Cass R. Sunstein, said no. They both make good points.

This is not a new debate. For decades scholars have been parsing the Constitution, the famous Federalist papers, and every word on record from the Founding Fathers and the ratifying conventions of the late 1780s and still they disagree on the matter.

Sad to say, the men who invented the presidency in Philadelphia in 1787 just didn’t say, either in the Constitution itself or, as far as we know, in their debate.

There are three plausible reasons for their silence on the subject — apart from their general desire to avoid too much detail in the Constitution. (They were specific about only a few things; and said nothing about most.)

One is that their vision of a president was George Washington, who was in the room, presiding over the Constitutional Convention.

Who would dare suggest that he would ever do anything that was less than honest, let alone commit a crime. How awkward to even bring up the possibility that he might usurp power let alone become a crook.

“To express too much fear of executive authority might have seemed disrespectful to the man for whom the office was being tailored,” as legal scholar Garrett Epps wrote in an article about how “ill considered” the presidency was. “Even when Washington remained silent, his presence shaped the debate.”

A number of delegates in the convention thought removal by impeachment wasn’t even worth talking about. Charles Pinckney of South Carolina said the power of impeachment would just give Congress “a rod over the executive” which would “destroy his independence,” according to James Madison’s notes.

But Ben Franklin, who favored impeachment, pointed out that the traditional alternative in the absence of a removal process was assassination, terribly unfair, he said, in which a leader “was not only deprived of his life but the opportunity of vindicating his character.”

Virginia’s George Mason favored a provision for impeachment “when great crimes” are committed by the president. “Shall any man be above justice?” he asked.

Will Trump be impeached? It's far less likely than some Democrats are suggesting (Peter Stevenson/The Washington Post)

Second, the delegates had little understanding of the presidency they were creating, as they were starting from scratch.

While they ultimately wrote a great deal about the Congress into the Constitution, they said relatively little about the presidency, enumerating Congress’s powers but not those of the president. They had only the dimmest vision of the office in part because they had never encountered anything quite like it.

One of the most famous and telling moments of the Constitutional Convention came in the early days, when the subject of what they were still calling the “first magistrate” or “chief magistrate” came up for discussion and the delegates had to discuss whether the job should be occupied by a single person, or perhaps three people.

“A considerable pause” ensued, as James Madison wrote in his notes of the June 1 session.

John Rutledge of South Carolina commented on “the shyness” of his colleagues on the subject. Only after Franklin urged them to speak up, saying this was “a point of great importance,” did the debate get started.

Corruption was indeed often on their minds. No doubt about that. But it was corruption in Congress they feared, more than in the executive.

All of the roughly 55 delegates who were in and out of the four-month-long convention were familiar with the legislative branch, and many of them had served in state legislatures or the Continental Congress or the Congress under the Articles of Confederation. Some were steeped in the history of the British parliament. They did not like what they saw in the state legislatures and many spoke contemptuously of popularly elected bodies and the people who elected them.

Gouverneur Morris, a delegate from Pennsylvania once recalled his distaste standing in the balcony of a colonial legislature, observing that “the mob begin to think and reason. Poor reptiles.”

And while they were sufficiently concerned about the presidency to provide for impeachment in cases of “high crimes and misdemeanors,” their worry about the executive was focused mostly on avoiding the appearance of a monarchy or a path to tyranny.

The word corruption is mentioned in Madison’s notes 54 times, according to a study by Zephyr Teachout in the Cornell Law Review.

“They were concerned,” Teachout writes, “that the proposed Senate would be easily corrupted because of its small size, and that the proposed populist House of Representatives would be easily corrupted because of the weak virtue of the men who would stand for it.

“The concern was that members of Congress would use their position to enrich themselves and their friends, and that they would see public office as a place for gaining civil posts and preferences, instead of as a public duty.

“The Framers,” she writes, “believed that the Executive — by tying his core identity to the nation’s success — would not be as corruptible as Senators and Congressmen.”

In their world, at that time and place, something like the indictability of a president was at best a minor matter, so trivial compared to the larger issues that there is no record of it even being discussed in Philadelphia.

It was among the least of their worries.

Clarification: The original version of this story said Gouverneur Morris was a delegate from New York. While he was originally from New York, he represented Pennsylvania.

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