Historian Drafts Supreme Court Brief Contesting Trump’s Immunity Claims

The junior high social studies class truism that the U.S. president isn’t a king might not seem quite so self-evident these days. Recent blurring of that distinction helped motivate a University of Maryland history professor to lead the drafting of an amicus brief filed last week in Trump vs. the United States, a pending Supreme Court case that will decide if presidents can be held criminally liable for actions in office.

In the brief signed by 14 historians of the early U.S., Holly Brewer, Burke Professor of American History, takes aim at the up-and-coming “unitary executive” theory, which posits that presidents were supposed to retain many of the powers and privileges of monarchs, and should have relatively unchecked authority over the federal government.

Brewer and Professor Rosemarie Zagarri of George Mason University worked with lawyers from the nonpartisan Brennan Center for Justice to shape the filing to counter former President Donald Trump’s legal defense team’s argument that the principle confers immunity from prosecution for official acts.

“Law professors at places from the University of Virginia to Yale have signed onto this theory or even written books upholding it, and organizations like the Federalist Society are putting their weight behind it, so the statement that the president is subject to the same laws as the rest of us has actually become problematic,” Brewer said.

Broadly, the theory states that English common law—a subject on which Brewer is an expert—remained in effect in the U.S. after the American Revolution, and thus, presidents have kingly privileges. Although the English common law was retained in many ways after the revolution, Brewer said, revolutionaries rejected aspects of it that conferred special privileges. There were plenty of exceptions to retaining that set of legal customs, of which these legal scholars seem unaware, she said. “They’re acting as if the American Revolution never took place.”

She finds irony in lawyers who claim to follow “originalism” being unfamiliar with constitutional history, which she said roundly refutes the immunity claim. Among the highlights of the brief:

Hamilton never sang a song of immunity.

Although the founding father lobbied for some king-like features in the presidency such as lifetime tenure, the subject of the popular musical never envisioned a chief executive who wasn’t accountable to the people, Brewer said. Proponents of the unitary executive theory often point to Alexander Hamilton’s more conservative leanings but leave out something very important.

“It’s often said that Hamilton gave a speech where he proposed something like an American monarchy, but that’s where the analysis stops,” Brewer said. “If you keep reading, he proposes a lifetime executive ‘during good behavior,’ and those are really important words. They were at the core of 18^th century disputes over how to remove corrupt people from office. So even if Hamilton was interested in a system a little more like England’s, it means he thinks presidents can be held accountable for their actions.”

None of the Constitution’s framers wanted a new monarch.

As part of her research, Brewer analyzed all the records of the 1787 Constitutional Convention and individual ratifying conventions. “I didn’t realize until I read through all of them and through these legal treatises that there was not a single person who disagreed with the idea that the president should be held accountable to the law.”

Where the actual disagreement lay was with Anti-Federalists who thought the proposed supreme law of the land didn’t go far enough to check the executive power of the president, resulting in Constitutional Convention participant George Mason, namesake of the university, refusing to support the document at Virginia’s ratifying convention, she said.

Legal scholars have dismissed Trump’s theory for hundreds of years.

Writing in the late 18^th century, federal court judge and Revolutionary War soldier St. George Tucker explored what features of the common law should be retained in the first major American legal treatise published after the revolution. In it, he made clear that the sections covering the British monarchy no longer applied in America.

In his pioneering 1833 treatise on constitutional law, Supreme Court Justice Joseph Story stated that the president is subject to the law the same as everyone else.

“He wrote, ‘The president is to stand for his final deliverance like his fellow citizens,’ which makes it absolutely clear that what is happening now is how it is supposed to work,” Brewer said. “The Trump legal team’s argument—that presidents are generally immune from prosecution and that in order to prosecute, they have to have been impeached by the House and convicted by the Senate—is not a valid constitutional interpretation as it has been understood for the past 230 years.”