Is Trump Above the Law

By Nancy Isenberg*

Contrary to what former US President Donald Trump would have the American public believe, no president enjoys absolute immunity from criminal prosecution. To suggest otherwise is to reject a bedrock principle of American democracy: the president is not a monarch.

Facing criminal indictments in connection with a hush-money payment to an adult-film actress and his efforts to overturn the result of the 2020 US presidential election, Donald Trump claims that, as a former president, he enjoys blanket immunity from prosecution. The US Supreme Court will now decide if he is right. US Special Counsel Jack Smith’s filingto the Court makes a convincing argument that the weight of history – and three precedents, in particular – invalidate Trump’s claim.

The most obvious precedent is the Watergate scandal, which led to an impeachment inquiry and President Richard Nixon’s resignation from office in 1974. Smith stresses that President Gerald Ford’s pardon of his predecessor fully acknowledged “criminal liability,” and that Nixon’s acceptance of the pardon represented a “confession of guilt.” Without Ford’s pardon, Nixon likely would have faced criminal prosecution. If absolute immunity is an inherent power of the presidency, as Trump claims, no pardon would have been necessary.

The other two precedents, Smith argues, are landmark cases more than two centuries apart: the 1807 prosecution of Thomas Jefferson’s former vice president, Aaron Burr, for treason, and the Supreme Court’s decision in Trump v. Vance in 2020.

In the Burr trial, which took place around two years after the defendant left national office, Chief Justice John Marshall weighed the charge that the defendant had tried to foment a rebellion in the western states in order to form his own country. In fact, Burr’s actual purpose had been to organize a filibuster (a private military force) to exploit land claims in the event of a war with Spanish Mexico. The so-called “Burr conspiracy” was based on rumors peddled by biased newspapers; in the end, Burr was acquitted.

But the more recent precedent makes Burr’s case newly relevant. In Vance, the Court rejected Trump’s efforts to quash a subpoena and avoid handing over his financial records in the hush-money case for which he is now on trial in New York. Let that sink in: the Supreme Court already shot down Trump’s claim of immunity four years ago.

"As imperfect as it was – and is – the Constitution never granted a president or vice president absolute immunity."

According to Smith, United States v. Burr and Vance are the “actual historical bookends” of the current prosecution. Each confirms “the principle that presidents are amenable to judicial process and that no person is above the law.” In Vance, Chief Justice John Roberts wrote the majority opinion and placed much emphasis on the Burr precedent. During the 1807 trial, Marshall had issued a subpoena duces tecum to the sitting president, which meant that Jefferson had to hand over certain requested papers, and possibly appear in court. In the end, as Roberts concluded in Vance, Jefferson was shown to be subject to the law.

Smith’s brief doubles down on this precedent, quoting Marshall in the Burr case: “The president is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again.” The principle of rotation in office – that a president served a term of four years – is one of the most fundamental limits on executive power. It ensures that a president in no way resembles a monarch, who always remains above and apart from the people. Only monarchs can claim absolute immunity; US presidents’ powers and titles are only temporary.

Nor does the significance of the Burr case stop there. Burr had left office as vice president when he was put on trial, and it was Jefferson, in his second term, who led the charge against him. In the 1800 election, Jefferson and Burr were the candidates vying to replace the sitting president, John Adams. Unlike today, the Constitution did not distinguish between president and vice president in the Electoral College; instead, the candidate who received the most electoral votes became president, and the second highest vote-getter became vice president. 

Four years earlier, Jefferson had opposed Adams, and ended up serving as his vice president. In 1800, Jefferson and Burr received the same number of votes, making them both “president-elect” until the tie was broken in the House of Representatives.

The problem was removed in 1804 with passage of the Twelfth Amendment, establishing the familiar presidential/vice presidential ticket. That same year, Jefferson exchanged Burr for a much older and less dynamic vice president, New York Governor George Clinton.

As imperfect as it was – and is – the Constitution never granted a president or vice president absolute immunity. To do so would be an admission that the executive is nearly an “elective monarchy,” which the founders, with few exceptions, would never have tolerated. At the Constitutional Convention, Smith notes, James Wilson of Pennsylvania, before becoming an associate justice of the Supreme Court, stated clearly that every president was subject to criminal prosecution for his private misdeeds, while impeachment applied to his “public character” or violations of his official duties.

From whatever angle one views the Burr trial, the constitutional issues involved merely reconfirm the obvious: no one is above the law. Anyone who agrees that a former vice president (one who nearly became president) can be prosecuted for treason will be hard-pressed to argue that somehow a halo of immunity follows a former president for the rest of his days. “As Marshall explained,” writes Roberts in the Vance majority opinion, “a king is born to power and can ‘do no wrong.’ The president, by contrast, is ‘of the people’ and subject to the law.”

The matter before the Supreme Court today is cut and dried. No president has absolute immunity. To decide otherwise would make America’s founders turn in their graves.

*Nancy Isenberg, Emeritus Professor of History at Louisiana State University, is the author of Fallen Founder: The Life of Aaron Burr, The Problem of Democracy: The Presidents Adams Confront the Cult of Personality, and White Trash: The 400-Year Untold History of Class in America (Penguin Books).