Trump’s Executive Immunity Arguments Betray America’s Founding Principles Commentary
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Trump’s Executive Immunity Arguments Betray America’s Founding Principles

Last week, a US appeals court panel stood as guardians of America’s founding ideals against a would-be despot. Donald Trump told the court that he is immune to prosecution over the January 6 Capitol attack because at the time he was president, and thus anything he may have said or done in connection with the uprisings was within his official capacity. However, his arguments are particular to another time and another place. His claims are rooted not in constitutional tradition, but rather in a principle repudiated by America’s founding fathers.

This principle is called “crown immunity,” a form of sovereign immunity. While sovereign immunity remains a key aspect of American law, it assumes a slightly different form than it takes in the United Kingdom.

In the UK, sovereign immunity applies not only to the state itself but also to the person of the monarch, who is immune from suit and prosecution. But that conception has evolved over the course of centuries. Some 375 years ago, an English king was put on trial. In 1649, after losing the English Civil War, a conflict fueled by a power struggle between King Charles I and England’s Parliament, the House of Commons charged Charles with tyranny and treason. The first words the King set forth in his own defense questioned the authority of the court itself:

I would know by what power I am called hither … I would know by what authority, I mean lawful; there are many unlawful authorities in the world; thieves and robbers by the high-ways … Remember, I am your King, your lawful King, and what sins you bring upon your heads, and the judgment of God upon this land. Think well upon it, I say, think well upon it, before you go further from one sin to a greater … I have a trust committed to me by God, by old and lawful descent, I will not betray it, to answer a new unlawful authority; therefore resolve me that, and you shall hear more of me.

Charles appealed to the divine right of kings, an ancient doctrine holding that monarchs are given their authority by God and that the power bestowed upon them may not be licitly taken away by temporal means. But this idea would soon go out of fashion, giving way to an interpretation that left more room for human agency. As the English Civil War drew to a close in 1651, political philosopher Thomas Hobbes wrote:

No man that hath sovereign power can justly be put to death, or otherwise in any manner by his subjects punished. For seeing every subject is author of the actions of his sovereign; he punisheth another, for the actions committed by himself.

Here, Hobbes combined the budding notion of the social contract with the ancient idea of sovereign immunity, the notion that monarchs, as the embodiments of their realms, cannot be tried by their subjects. Hobbes reasoned that since individuals willingly subject themselves to the crown for protection and peace, they have no right to punish the sovereign.

But within Hobbes’ idea were the seeds of its own destruction. And as revolutionary fervor swept the British colonies of the US, the consequences took hold.

In 1776, political theorist and founding father Thomas Paine, supporting the separation of America from the United Kingdom, envisioned a people coming together to form a government under the auspices of a “state-house” instead of a monarch. Although he understood as well as Hobbes that “vice” was to be kept at bay, he envisioned a different endpoint of the social contract: democracy.

For Paine, monarchy was a form of ancient tyranny. He pointed out that the sovereign is most often not chosen by the consent of the governed but by hereditary right. Paine wrote:

[A]s no man at first could possess any other public honors than were bestowed upon him, so the givers of those honors could have no power to give away the right of posterity, and though they might say ‘We choose you for our head,’ they could not, without manifest injustice to their children, say ‘that your children and your children’s children shall reign over ours for ever.’

Thus, with the rise of republican sentiments in America, Hobbes’ idea of sovereign immunity reached its logical conclusion, that only the state, continually molded by democratic consent, could be shielded from suits, not the person of the monarch.

In 1788, a year before becoming the US’ inaugural treasury secretary, Alexander Hamilton wrote in the face of lingering royalist opposition how the new American system would contrast with the UK’s notion of sovereign immunity:

The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.

Evidently, the founders intended to break with the old monarchist tradition of having state power emanate from a king. Power was instead to be vested in the Constitution, to which the president would be subject. Thus, Trump’s arguments that the Constitution shields the president from some prosecutions are grounded neither in American tradition nor in reality.

Ironically, Trump’s legal team had the gall to mention Hamilton’s discussion of prosecuting the president in their appellant brief. As part of a dubious argument that the President’s “official acts” are not criminally reviewable by the courts, Trump’s lawyers claimed that Hamilton’s point was that prosecution could only come after impeachment and senate conviction, ripping the ex-Treasury Secretary out of context. The brief argues:

Alexander Hamilton reinforced this understanding by writing in The Federalist that the President may face criminal prosecution only ‘afterwards’ or ‘subsequent’ to impeachment and Senate conviction. President Trump was acquitted, not convicted, by the Senate after an impeachment, so he retains immunity for his official acts.

This interpretation appears to reflect a misunderstanding of Hamilton’s assertion. If read in context, it becomes apparent that Hamilton was taking pains to distinguish the American presidency from the British monarchy, emphasizing that, unlike the king, the president would be liable to criminal conviction as an officer of — as opposed to the embodiment of — the state. Even if we were to accept Justice Joseph Story’s assertion that the president “cannot… be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office,” it remains that a president, unlike a monarch, is still subject to prosecution after leaving office. The shadow of crimes committed in office would hang over a president’s head.

Further, Trump’s legal team conspicuously left the term “sovereign immunity” out of their legal briefs, despite discussing the history of legislative and judicial immunity. His lawyers argued that judicial and legislative immunity are “rooted in the separation of powers.” But sovereign immunity, as it applies to heads of state, is rooted in the concentration of power, which was anathema to the framers. The closest Trump’s counsel came to acknowledging the doctrine explicitly was by mentioning “immunity” drawn from the common law and 1982’s Nixon v. Fitzgerald, which shielded the president from civil liability as a result of official acts. Crown immunity is a core common law principle maintained by the United Kingdom and many Commonwealth Realms. Yet it is conspicuously missing in the Trump team’s discussion of common law, perhaps because America was founded based on the rejection of that principle.

Trump’s lawyers tried to contort the historical record to fit their conclusions rather than drawing conclusions that fit the evidence. The earliest traditions of the United States explicitly stand against monarchical privilege and crown immunity. Instead of championing the separation of powers, Trump’s lawyers channel Charles I, asking by what power Trump is called to court. At least when Charles argued his authority was insured by divine intervention, the law was on his side. But 400 years have passed, during the course of which the US was established in opposition to such laws. To ignore this fact shows ignorance at best.

William Hibbitts is the Deputy Editorial Director of JURIST.

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