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Op/ed: The Supreme Court Turns the President Into a King

Historian Who Argued Against Criminal Immunity for Official Acts Decries Decision

By Holly Brewer

Inscription on Supreme Court building

A UMD historian helped refute historical arguments for the immunity of the U.S. president for criminal prosecution for official acts, but the court pointed to other legal arguments in its majority decision.

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A U.S. Supreme Court decision handed down Monday in Trump v. the United States declaring that U.S. presidents can’t be prosecuted for official acts refutes the motto carved onto the high court’s building: “Equal Justice Under Law,” writes Holly Brewer, Burke Professor of American History, in a new op-ed in The New Republic.

Brewer, a University of Maryland expert in English common law (which forms much of the basis of U.S. law) and the legal theories of the early republic, worked with other scholars to dismantle the claim, presented by former President Donald Trump’s lawyers, that presidents have always had such criminal immunity. In the end, the majority decision was based on other points, she wrote.

Because I have read so widely in legal treatises of the 1790s, I agreed to compose the first draft of an historians’ amicus brief for the court on this case. With support from the Brennan Center for Justice and a major law firm, I and 14 other historians explained as clearly as possible a central principle of nearly every founding-era legal treatise and the Constitutional Convention, ratifying conventions, and state constitutional conventions. Presidents were not like kings, but accountable to the law like any other citizen. It was both humbling and gratifying during the oral argument, then, when the conservatives on the court avoided addressing historical arguments, even as Justices Jackson, Elena Kagan, and Sonia Sotomayor quoted from our brief.

Read the rest in The New Republic.



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