On Tuesday, lawyers for the United States and for former President Donald Trump will appear in the federal appeals court for the District of Columbia to argue whether Trump is immune from prosecution.
If the appeals court upholds Judge Tanya S. Chutkan’s order rejecting Trump’s claim that the Constitution grants him “absolute immunity from criminal prosecution” for his actions while he was president, an important reason will be that Judge Chutkan’s reasoning tracks constitutional theories advocated by the conservative majority on the Supreme Court—where the losing party in the Circuit Court will inevitably go next.
The interpretive theories are commonly labeled “originalism.” Justice Clarence Thomas is the leading advocate for this theory among the current Supreme Court justices.
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In a recent opinion striking down a New York state gun regulation, Justice Thomas explained that this theory requires judges to make decisions that are faithful to the Constitution’s “plain text” and also are “consistent with this Nation’s historical tradition.” The Court has often invoked this methodology to justify controversial decisions interpreting the Constitution—like the 2022 opinion striking down abortion rights.
Judge Chutkan’s order rejecting Trump’s claim of “absolute immunity from criminal prosecution” applies originalist orthodoxy, providing the Court of Appeals with a roadmap for issuing a decision that should attract even the most conservative Supreme Court justices. The text itself does not grant immunity from prosecution for crimes committed before, during, or after a person serves as president. No matter how carefully you read it, the Constitution never announces that a president can commit crimes with impunity.
The history of the creation and ratification of the Constitution provides powerful support for Judge Chutkan’s finding that the country’s founders rejected all proposals to create an imperial president possessing “a lifelong ‘get-out-of-jail-free’ pass.” This historical evidence should be dispositive for judges who claim to be constitutional originalists.
For example, the records of the Constitutional Convention reveal that Alexander Hamilton initially argued that the English system should be the model for our new government, and proposed that the chief executive should be an elective Monarch who would serve for life unless removed from office by impeachment. The delegates to the convention (and later the ratifying states) rejected that idea, and instead established a system in which the executive power “shall be vested” in a president who must be elected, who will only hold office for a “term of four years,” and, is subject to the various checks and balances imposed on all branches of the government.
Donald Trump at The Ellipse, near the White House, on Jan. 6, 2021.
Brendan Smialowski/AFP via GettyThe rejection of the idea of an “elective Monarch” during the Constitutional Convention was so complete that in the following months Hamilton publicly reversed his earlier position, writing in the Federalist Papers that, unlike the British Monarchs, future presidents would not be immune from criminal liability.
Hamilton wrote, for example, that in “England, the King is a perpetual magistrate… unaccountable for his administration,” while “in a Republic…every magistrate ought to be personally responsible for his behavior in office.” Hamilton emphasized that under the Constitution a president could be impeached, convicted, and removed from office for bribery, treason, or other “high crimes and misdemeanors,” and once no longer president, would “be liable to prosecution and punishment in the ordinary course of law.”
Elsewhere in the Federalist Papers, Hamilton stressed that the president would be “at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law,” confirming that a prosecution can follow impeachment, but impeachment is not required before prosecuting a former president.
Judge Chutkan concluded that “[n]othing in American history justifies the absolute immunity Defendant seeks, in part because “there is no evidence that the Founders understood the Constitution to grant it, and since that time the Supreme Court ‘has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law.’”
Judge Chutkan, like the nation’s founders, concluded that holding a government job for four years—even serving as President—does not grant anyone “the divine right of kings to evade the criminal accountability that governs his fellow citizens. ‘No man in this country,’ not even the former President, ‘is so high that he is above the law.’”
A Trump impersonator holds a sign outside the E. Barrett Prettyman U.S. Courthouse in Washington, D.C., on August 28, 2023.
Brendan Smialowski/AFP via GettyMore recent history supports this conclusion. This history includes relevant 20th-century events, including multiple decisions by the Supreme Court, written opinions produced by lawyers working in the Nixon and Clinton administrations, and actions by two of Trump’s predecessors in office.
Precisely because former President Richard Nixon was not immune from prosecution, President Gerald Ford granted him “full, free, and absolute pardon… for all offenses against the United States [that he] has committed or may have committed or taken part in” while president. Nixon, who was facing possible prosecutions, acknowledged his potential criminal liability by accepting a “full and absolute pardon for any charges which might be brought against me for actions taken during the time I was President of the United States.”
Trump is attempting to bolster his argument for immunity with an unusual textual interpretation, arguing that a former president can only be prosecuted for crimes committed in office following impeachment and conviction by Congress.
The “Impeachment Judgment Clause” of the Constitution states that “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” (U.S. Const. art. I, § 3, cl. 7.)
Since 1787, this clause has been understood to define two different punishments for presidential crimes available in two separate institutions.
The Congress can remove a president from office, but cannot punish him criminally. Criminal penalties can only be imposed in judicial proceedings. While there has been disagreement about whether a president can be prosecuted criminally while holding office, the traditional interpretation has always recognized that a former president can be. This matters because, as Judge Chutkan notes in her order, Trump “is not president, and reading the Clause to grant absolute criminal immunity to former presidents would contravene its plain meaning, original understanding, and common sense.”
Conservative judges, like the current majority on the Supreme Court, should agree with Judge Chutkan when and if they decide this case. To find former President Trump immune from criminal prosecution would prove their critics right—originalism is actually a rigged method for justifying politicized judicial decisions, not an impartial theory of constitutional interpretation.
