Sixteen Republicans — former prosecutors, elected or appointed officials and lawyers — who signed onto the brief, including Ty Cobb (Trump’s former lawyer), Bill Kristol (former chief of staff to vice president Dan Quayle), lawyer George T. Conway III, former Massachusetts governor William F. Weld and former congressman Tom Campbell — made their arguments against immunity from a distinctly conservative perspective. (These would be the sort of arguments that might have appealed to honest conservative justices of the past, such as Sandra Day O’Connor, Byron R. White and even Antonin Scalia.)

First and foremost, the amicus brief demonstrates fidelity to the clear meaning of the Constitution. When its writers argue that the Constitution’s text omits any reference to presidential immunity and that the Framers could have put one in had they intended to shield the office from prosecution (as they did for members of Congress in the speech or debate clause), the writers are deploying honest originalism. Because the text lacks an immunity provision, the courts have no power to invent such a protection. They likewise find no basis in the Constitution for Trump’s argument that prosecution must be preceded by impeachment and conviction. In deploying an originalist analysis, the amicus brief returns to a principle that the current right-wing majority on the Supreme Court has kicked to the curb: judicial restraint.

Second, these true conservatives embrace the concept of limited government. Citing Federalist Paper No. 69, they note that the president should not be regarded as a king but rather as something akin to the governor of New York (hence, subject to prosecution). To back up their argument that the president has never been regarded as beyond the reach of criminal laws, they cite, among other things, the pardon for Richard M. Nixon (unnecessary if he was immune) and Trump’s own arguments in the second impeachment trial.

Third, the amicus brief argues that an immunity defense would shred the concept of separation of powers. The Constitution’s protection against despotism rests on a structure in which the three branches hold different powers, with no branch dominating the others. Allowing prosecution for criminal actions of a former president, the brief argues, vindicates the current president’s power to “take care” in enforcing the law. Trump is impermissibly attempting to “wield the Judicial Branch to obstruct the Executive’s prosecutorial prerogatives.”

Fourth, in rebutting a claim to a lesser type of immunity, the amicus brief reaffirms the rule of law and the sanctity of elections. Preventing an incumbent from overriding the results of the electoral college and barring a president from interfering with state officials’ conduct of elections — actions that are central to the Jan. 6, 2021, indictment — reflect the principle that the laws, including election laws, treat both sides equally, allowing the incumbent no superpowers to shape the result. Allowing an incumbent to fix the outcome of his own election to exceed his own four-year term would debilitate the entire constitutional system.



[Post edited by WaxHoo at 01/02/2024 10:36AM]