Donald Trump’s claim that he has absolute immunity for criminal acts taken in office as president is an insult to reason, an assault on common sense and a perversion of the fundamental maxim of American democracy: that no man is above the law.
More astonishing than the former president’s claim to immunity, however, is the fact that the Supreme Court took the case in the first place. It’s not just that there’s an obvious response — no, the president is not immune to criminal prosecution for illegal actions committed with the imprimatur of executive power, whether private or “official” (a distinction that does not exist in the Constitution) — but that the court has delayed, perhaps indefinitely, the former president’s reckoning with the criminal legal system of the United States.
In delaying the trial, the Supreme Court may well have denied the public its right to know whether a former president, now vying to be the next president, is guilty of trying to subvert the sacred process of presidential succession: the peaceful transfer of power from one faction to another that is the essence of representative democracy. It is a process so vital, and so precious, that its first occurrence — with the defeat of John Adams and the Federalists at the hands of Thomas Jefferson’s Republicans in the 1800 presidential election — marks a second sort of American Revolution.
Whether motivated by sincere belief or partisanship or a myopic desire to weigh in on a case involving the former president, the Supreme Court has directly intervened in the 2024 presidential election in a way that deprives the electorate of critical information or gives it less time to grapple with what might happen in a federal courtroom. And if the trial occurs after an election in which Trump wins a second term and he is convicted, then the court will have teed the nation up for an acute constitutional crisis. A president, for the first time in the nation’s history, might try to pardon himself for his own criminal behavior.
In other words, however the court Supreme Court rules, it has egregiously abused its power.
It is difficult to overstate the radical contempt for Republican government embodied in the former president’s notion that he can break the law without consequence or sanction on the grounds that he must have that right as chief executive. As Trump sees it, the president is sovereign, not the people. In his grotesque vision of executive power, the president is a king, unbound by law, chained only to the limits of his will.
This is nonsense. In a detailed amicus brief submitted in support of the government in Trump v. United States, 15 leading historians of the early American republic show the extent to which the framers and ratifiers of the Constitution rejected the idea of presidential immunity for crimes committed in office.
“Although the framers debated a variety of designs for the executive branch — ranging from a comparatively strong, unitary president to a comparatively weaker executive council — they all approached the issues with a deep-seated, anti-monarchical sentiment,” the brief states. “There is no evidence in the extensive historical record that any of the framers believed a former president should be immune from criminal prosecution. Such a concept would be inimical to the basic intentions, understandings, and experiences of the founding generation.”
The historians gather a bushel of quotes and examples from a who’s who of the revolutionary generation to prove the point. “In America the law is king,” Thomas Paine wrote in his landmark pamphlet, “Common Sense.” “For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”
James Madison thought it “indispensable that some provision should be made for defending the Community against the incapacity, negligence or perfidy of the chief Magistrate.” The presidency was designed with accountability in mind.
Years later, speaking on the Senate floor, Charles Pinckney of South Carolina — a delegate to the Constitutional convention in Philadelphia — said outright that he and his colleagues did not intend for the president to have any privileges or immunities: “No privilege of this kind was intended for your Executive, nor any except that which I have mentioned for your Legislature.”
What’s more, as the brief explains, ratification of the Constitution rested on the “express” promise that “the new president would be subject to criminal conviction.”
“His person is not so much protected as that of a member of the House of Representatives,” Tench Coxe wrote in one of the first published essays urging ratification of the Constitution, “for he may be proceeded against like any other man in the ordinary course of law.”
James Iredell, one of the first justices of the Supreme Court, told the North Carolina ratifying convention that if the president “commits any misdemeanor in office, he is impeachable, removable from office, and incapacitated to hold any office of honor, trust or profit.” And if he commits any crime, “he is punishable by the laws of his country, and in capital cases may be deprived of his life.”
Yes, you read that correctly. In his argument for the Constitution, one of the earliest appointees to the Supreme Court specified that in a capital case, the president could be tried, convicted and put to death.
If there were ever a subject on which to defer to the founding generation, it is on this question regarding the nature of the presidency. Is the president above the law? The answer is no. Is the president immune from criminal prosecution? Again, the answer is no. Any other conclusion represents a fundamental challenge to constitutional government.
I wish I had faith that the Supreme Court would rule unanimously against Trump. But having heard the arguments — having listened to Justice Brett Kavanaugh worry that prosecution could hamper the president and having heard Justice Samuel Alito suggest that we would face a destabilizing future of politically motivated prosecutions if Trump were to find himself on the receiving end of the full force of the law — my sense is that the Republican-appointed majority will try to make some distinction between official and unofficial acts and remand the case back to the trial court for further review, delaying a trial even further.
Rather than grapple with the situation at hand — a defeated president worked with his allies to try to overturn the results of an election he lost, eventually summoning a mob to try to subvert the peaceful transfer of power — the Republican-appointed majority worried about hypothetical prosecutions against hypothetical presidents who might try to stay in office against the will of the people if they aren’t placed above the law.
It was a farce befitting the absurdity of the situation. Trump has asked the Supreme Court if he is, in effect, a king. And at least four members of the court, among them the so-called originalists, have said, in essence, that they’ll have to think about it.