My originalist heart is troubled.
In the opening moments of Donald Trump’s argument for presidential immunity, Justice Clarence Thomas pressed Trump’s lawyer, John Sauer, to state the “source” for his sweeping argument that presidents are absolutely immune from criminal prosecution for official acts in office. Sauer’s response virtually ends his argument (or ought to). “The source of the immunity,” he said, “is principally rooted in the Executive Vesting Clause of Article II, Section 1.”
Here is the full text of the Executive Vesting Clause: “The executive Power shall be vested in a President of the United States of America.” That’s it. That’s the whole thing. There’s no follow-on clause that says, “Therefore, the president is immune from prosecution for his official acts as president.” If that’s the textual hook for Trump’s argument, then its deficiencies should be plain.
But the justices spent more time in the hourslong oral argument last week discussing the consequences of its potential ruling than it spent on the text and structure of the Constitution. Yet a faithful originalist inquiry would settle the case, quickly, against Trump.
The Supreme Court defined the question before it quite simply: “Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The answer, applying any form of reasonable originalist analysis, is “almost never” and “certainly not in Trump’s case.” But to understand why, it’s important to dig into what originalism actually is.
In many ways, originalism is a poorly named doctrine. Properly understood, it’s focused more on the text of the document than the time of ratification. I like the way Judge Kevin Newson, a conservative judge on the 11th Circuit based in Alabama, describes both originalism and its close cousin, textualism, as sharing the same purpose: “to discern (1) the common, ordinary understanding of words on a page (2) at the time of a document’s adoption.” As a result, “the focus of any proper originalist inquiry is the document itself.” Text and context both matter, but text matters much more.
The Executive Vesting Clause — the centerpiece of Trump’s argument — isn’t entirely meaningless to the immunity debate. After all, Congress couldn’t decide tomorrow to criminalize command of the armed forces, for example, or to criminalize the use of the veto. Such laws wouldn’t criminalize abuse of executive power; they’d eliminate the power entirely.
A good way of thinking through the distinction between criminalizing abuses of executive power and criminalizing executive power itself is to consider a crime that was much-discussed at oral argument: bribery. The power of presidential appointment is a core, enumerated executive power of the president, but he should still be subject to bribery laws if prosecutors can prove that he’s selling cabinet offices for cash.
In that circumstance, the rule established by the D.C. Circuit in its decision rejecting Trump’s immunity argument — that violating “generally applicable criminal laws” is not “properly within the scope” of the president’s “lawful discretion” — seems sound.
But that’s not the entirety of the textual analysis. The Constitution’s overall structure refutes Trump’s argument, and it’s difficult to understand the structure of the Constitution without understanding it as a small-r republican rebuke to royal authority. The American colonists had seen the danger of concentrated royal power — including royal immunities — and set about demolishing that power, comprehensively and thoroughly.
It’s doubtful that Louis XIV actually uttered the famous quote attributed to him, “L’état, c’est moi” — which roughly translates to “I am the state” — but it does accurately describe what European royal authority was like at its height. The king was the nation’s most powerful warrior, lawmaker, judge and priest. His word was law, and there was no law above his word.
In fact, the modern concept of sovereign immunity, which protects federal and state governments from suit, is rooted in the common law British concept “that the king could do no wrong.” The National Association of Attorneys General roots this doctrine in “the king’s position at the ‘apex of the feudal pyramid.’”
But our president isn’t at the apex of any pyramid. He may possess immense power as the nation’s chief executive, but he is not the law. He swears allegiance to the law, to the Constitution itself. And the text of that Constitution systematically strips royal prerogatives from any person and from every branch of government.
It splits the warrior function between the president and Congress. The president may command the troops, but Congress funds the military and declares war. The establishment clause removes the priest function from the government completely. No branch of government has ecclesiastical authority. It grants lawmaking power to Congress, but checks it with a presidential veto. The judiciary is independent, but nominated by the president and confirmed by Congress.
And when the Constitution does preserve vestiges of royal authority, it does so sparingly and explicitly. The pardon power, which grants a president immense ultimate authority over federal criminal law, for example, is a vestige of kingly power. Article I, Section 6 of the Constitution grants members of Congress limited privilege from arrest, and its speech and debate clause also protects members from suffering legal reprisals for their legislative acts. There is no corresponding provision for the president.
Trump asks us to look at a Constitution that’s silent on presidential immunity, that refuses to grant the powers and privileges of royalty to the nation’s leadership, and declare that even the most heinous and brutal official acts are immune from prosecution unless the president is impeached and convicted. That’s not originalism. Nor is that an example of “living constitutionalism,” which holds that the Constitution’s meaning can evolve over time, a concept that conservatives deplore. It’s magical constitutionalism. And it’s intellectually bankrupt.
That brings us to the conversation about consequences. I completely understand the risks of rogue criminal prosecutions. Trump has vowed to weaponize his own Department of Justice should he win office again and has promised to “appoint a real special ‘prosecutor’ to go after the most corrupt president in the history of the USA, Joe Biden.” But simply targeting the current president isn’t enough for Trump. He also promised to pursue “the entire Biden crime family.”
We should take Trump’s threats seriously, but neither those threats nor the threats of other politicians to prosecute Biden change the text or structure of the Constitution. If Americans want to provide the president with a version of the royal immunity that protected the monarchs of old, they can choose to do so through a constitutional amendment. Otherwise, presidents should remain subject to the rule of law, and not simply when they’re engaged in private conduct.
Ordinarily, I would have considerable confidence that the Supreme Court — dominated as it is by originalists — would rather quickly and decisively reject Trump’s argument. The court refused to hear specious challenges to the 2020 election, and it recently
