Fifteen prominent historians filed an amicus brief with the US supreme court, rejecting Donald Trump’s claim in his federal election subversion case that he is immune to criminal prosecution for acts committed as president.
Authorities cited in the document include the founders Alexander Hamilton, James Madison and John Adams, in addition to the historians’ own work.
Trump, the historians said, “asserts that a doctrine of permanent immunity from criminal liability for a president’s official acts, while not expressly provided by the constitution, must be inferred. To justify this radical assertion, he contends that the original meaning of the constitution demands it. But no plausible historical case supports his claim.”
Trump faces four federal election subversion charges, arising from his attempt to overturn his defeat by Joe Biden in 2020, fueled by his lie about electoral fraud and culminating in the deadly attack on Congress of 6 January 2021.
He also faces 10 election subversion charges in Georgia, 34 charges over hush-money payments in New York, 40 federal charges for retaining classified information, and multimillion-dollar penalties in civil cases over tax fraud and defamation, the latter arising from a rape allegation a judge called “substantially true”.
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Despite such unprecedented legal jeopardy, Trump strolled to the Republican nomination to face Biden in November and is seeking to delay all cases until after that election, so that he might dismiss them if he returns to power. His first criminal trial, in the New York hush-money case, is scheduled to begin next Monday.
Despite widespread legal and historical opinion that Trump’s immunity claim is groundless, the US supreme court, to which Trump appointed three justices, will consider the claim.
Oral arguments are scheduled for 25 April. The court recently dismissed attempts, supported by leading historians, to remove Trump from ballots under the 14th amendment, passed after the civil war to bar insurrectionists from office.
In a filing on Monday, the special counsel Jack Smith urged the justices to reject Trump’s immunity claim as “an unprecedented assault on the structure of our government”.
Seven of the 15 historians who filed the amicus brief are members of the Historians Council on the Constitution at the Brennan Center for Justice, a progressive policy institute at New York University law school.
Holly Brewer, a professor of American cultural and intellectual history at the University of Maryland, said: “When designing the presidency, the founders wanted no part of the immunity from criminal prosecution claimed by English kings.
“That immunity was at the heart of what they saw as a flawed system. On both the state and national level, they wrote constitutions that held all leaders, including presidents, accountable to the laws of the country. St George Tucker, one of the most prominent judges in the new nation, laid out the principle clearly: everyone is equally bound by the law, from ‘beggars in the streets’ to presidents.”
Other signatories to the brief included Jill Lepore of Harvard, author of These Truths, a history of the US; Alan Taylor of the University of Virginia, author of books including American Revolutions, about the years of independence; and Joanne Freeman of Yale, author of The Field of Blood, an influential study of political violence before the civil war.
Thomas Wolf, co-counsel on the brief and director of democracy initiatives at the Brennan Center, called Trump’s immunity claim “deeply un-American”, adding: “From the birth of the country through President Clinton’s acceptance of a plea bargain in 2001 [avoiding indictment over the Monica Lewinsky affair], it has been understood that presidents can be prosecuted.
“The supreme court must not delay in passing down a ruling in this case.”
