This Note offers a somewhat unique perspective on the notion of clemency. This inquiry contemplates the merit of temporary immunity from civil suits for acts which eventuated outside the scope of one's official responsibilities and argues that such an unprecedented expansion of civil immunity is antithetical to Montesquieu's conception of public virtue as evinced in The Spirit of Laws. This Note also reflects on the iconic role of Washington at the Constitutional Convention as emblematic of quintessential republican virtue. Part II briefly traces the evolution of absolute, qualified, and temporary immunity from an historical perspective. Part III acclimates the reader to Montesquieu and analyzes his influence on the American Constitution. Part IV examines Montesquieu's philosophy on the role of fear in a despotic state, honor in a monarchy, and virtue in a republic. Part V explores the embodiment of republican virtue in George Washington and the Framers' perhaps chimerical hope that future Executives would be likewise unconditionally devoted to republican virtue. Finally, Part VI summarizes the aforementioned sections and concludes that a temporary sovereign immunity for unofficial actions is not welcomed in a state which venerates the ideal of virtue in the public square. Save "imperious circumstances," fashioning a new, potentially pretextual immunity for unofficial, purely private actions may redefine the notion of immunity and be utilized to protect the honor of the President as is warranted only in a traditional monarchical form of government.
Note, Suspending the Rule of Law - Temporary Immunity as Violative of Montesquieu's Republican Virtue as Embodied in George Washington, 45 Clev. St. L. Rev. 301 (1997)