Trump’s “absolute immunity” would shock the founders

During oral arguments in the case — Trump v. United States, which centered around Donald Trump’s claim of “absolute immunity” for acts committed while in office — the former president’s attorneys invoked Alexander Hamilton. They argued that the founding father wouldn’t have wanted him to be held accountable in a court of law. I’m not a lawyer, but I am a lifelong conservative and a close reader of Hamilton. And the Trump legal team’s argument misses the mark in several ways:

First, it selectively reads Hamilton to ignore the fact that his arguments for our constitutional order were built in large part on a rejection of absolute executive power. And it twists his words to make him sound like an apologist for Trumpian excesses, rather than the stalwart for freedom, democracy and accountability that he actually was.

In “Federalist 69,” Hamilton wrote about what distinguished a president — whose executive powers are limited by the Constitution and subject to criminal liability — from a monarch: “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.”

By contrast, he wrote: “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.” The message was clear: In America, we elect presidents, not kings. And they should be held to account for breaking the law, even if it occurs while in office. That was properly understood to be the law of the land until this ruling.

Of course, it makes sense for there to be times when the president is free to act relatively unconstrained. Especially in highly sensitive national security matters, the president, as the nation’s commander in chief, needs broad discretion in order to be able to respond swiftly in the nation’s defense. This is a time-honored, common-sensical argument, and one that has been accepted by presidents of both parties for decades.

“Absolute immunity,” on the other hand, is a new invention. The argument, put forward by the former president’s legal team, is relatively straightforward: Presidents should be legally immune from prosecution for any acts committed while in office. Functionally, it’s an argument for the president to be above the law. If that sounds scary to you, that’s because it is. And the fact that the Supreme Court ruled in favor opens the door to all manner of future calamities.

Under the ruling, former presidents are granted absolute immunity for “official acts” — that is, duties within the scope of his constitutional mandate. There is no such immunity for “unofficial acts,” but the court’s conservative majority saw fit to define “official acts” in the broadest possible terms, writing that “at least a presumptive immunity” should be applied for “acts within the outer perimeter of his official responsibility.” That a nominally conservative court would take such an anti-conservative view of unitary executive power is breathtaking.

As a lifelong conservative, I recognize what a departure this is from a traditional reading of the Constitution. While debates long raged — and rightfully so — about the size and scope of a president’s power, there always existed a baseline understanding that “anything goes” was not a legitimate legal claim. Even Richard Nixon, hardly the most scrupulous politician of his day, resigned rather than force the nation to confront such an expansive and all-encompassing claim of presidential authority.

But that was then. Today, so-called conservatives of every stripe are lining up to celebrate Trump’s victory in the case. It can feel like a lonely and futile endeavor to defend Hamilton’s conception of presidential accountability sometimes, especially with so many others abandoning it. That’s why I’m part of a campaign called Republicans for the Rule of Law, which amplifies grassroots conservative voices who still defend the rule of law over novel notions of unchecked presidential power. There are more of us than our shout-fest discourse often makes it seem.

For the duration of his time in public life, Trump has gotten used to acting with impunity. He settled or prolonged lawsuits until they went away. He lied with reckless abandon and counted on his enablers to clean up the mess. He allowed others to go to prison for crimes they committed on his behalf. It’s only natural, then, that he would seek what is effectively a get-out-of-jail-free card when finally confronted with accountability for his actions — and have the high court hand it to him. It’s reckless and irresponsible for the well-being of the nation, but it’s good for Trump, and that’s what counts for him.

The justices of the court should have paused to consider the real-world implications of “absolute immunity.” Now, future presidents will be free to operate as they wish, without any meaningful check on their authority. As Trump’s own legal team admitted in this case, that would mean allowing a sitting president to order SEAL Team Six to assassinate his political opponent. Is that the kind of America that today’s conservatives envisioned when they ruled in this case? The majority declined to say in its opinion.

But Justice Sonia Sotomayor — not somebody I frequently agree with — addressed the question in her dissent: “When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s SEAL Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

Trump can’t be expected to have read his Hamilton. Before the musical came along, he likely had never heard of the man. But there are still conservatives out there who remember Federalist 69, and had wished to see its indelible lessons upheld by the Supreme Court in this case. The fact that the opposite happened is a blemish on the court’s record, and should serve as a dire warning to the nation of what may yet be in store for us. There was much wisdom in the founders’ decision to constrain the executive. It has plainly been forgotten by those who claim to carry the mantle of originalism.