The Argument Against Presidential Immunity

The Founders purposefully and carefully designed our constitutional system with a core principle in mind: the president is not a king. But the Trump administration has argued that while in office the president and his close advisors are immune from prosecution and can’t be compelled to testify or produce information by congressional or state investigators. Only a king enjoys that level of immunity from the law.

Protect Democracy is working at the state and federal level to ensure that no one is above the law. We represented law professors who filed an amicus brief 20 years ago in Clinton v. Jones in filing similar briefs in two key state court cases where President Trump claimed he was immune from investigation: Zervos v. Trump and N.Y. v. Trump (the Trump Foundation case).  

And we are representing Republican legal experts, former officials, and former members of Congress in filing an amicus brief in Committee on the Judiciary v. McGahn in the D.C. Circuit, which uses historical evidence to demonstrate that the Founders gave Congress and courts the power to compel the president (and by extension his aides)  to comply with subpoenas.

President Trump and his advisors claim that the president is immune from compulsory processes like subpoenas. But that’s not consistent with what the Founders thought about presidential immunity.

Historical evidence shows that the Founders believed that (1) every person who is competent to give evidence may be subpoenaed; (2) the King is the only exception; and (3) a president is not a King. In fact, the Founders omitted any reference to presidential “immunity” from the text of the Constitution. Based on the historical record, it’s clear that the president – and his current and former senior aides – are not immune from congressional subpoena. 

This historical perspective should inform courts as they weigh in on President Trump and his advisors’ claims of immunity. That’s why Protect Democracy is representing 20 legal experts, former officials, and former members of Congress – all Republicans – in an amicus brief analyzing the Founding-era historical record regarding whether the president and his aides are subject to subpoenas issued by Congress or the courts.

The brief was filed in the D.C. Circuit in Committee on the Judiciary v. McGahn. McGahn concerns a subpoena issued by the House Committee on the Judiciary to former White House counsel Don McGahn, who claimed to be absolutely immune from subpoena and refused to comply. The case is an important test of the President’s claim that he and his aides are absolutely immune from compelled congressional testimony or document disclosure. 

Brief of Amici Curiae Republican Legal Experts, Former Government Officials, and Former Members of Congress in Support of Plaintiff-Appellee in Support of Affirmance (Text)

Below are links to historical documents and relevant research that shows the Founders believed 1) that every person who is competent to give evidence can be subpoenaed, and 2) that kings are the only exception, and 3) that a president is not a king. These sources and more were cited in our McGahn amicus brief.

  1. Baron de Montesquieu, The Spirit of Laws 188 (10th Ed. S. Crowder, C. Ware, and T. Payne, London 1773)
  2. Tench Coxe, An American Citizen, On the Federal Government I, II, III, Independent Gazetteer (Sept. 26–29, 1787)
  3. Annals of Cong. 493 (1792)
  4. Letter from George Washington, President, to the U.S. House of Reps. (Mar. 30, 1796)
  5. Letter from Charles Lee, U.S. Att’y Gen., to George Washington, President (Mar. 26, 1796)
  6. Letter from James McHenry, U.S. Sec’y of War, to George Washington (Mar. 26, 1796)
  7. Thomas Cooper, An Account of the Trial of Thomas Cooper 10 (1800)
  8. Documents, Accompanying the Report of the Committee Appointed to Enquire into the Official Conduct of Samuel Chase and Richard Peters, Telegraphe and Daily Advertiser (Apr. 9, 1804) at 2
  9. United States v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807) (No. 14692D) (Marshall, C.J.)
  10. President James Monroe to George M. Dallas, Feb. 14, 1818, Records of the Office of the Judge Advocate General (Navy), Record Group 125, (Records of General Courts Martial and Courts of Inquiry, Microcopy M-272, case 282), National Archives Building
  11. Cong. Globe, 27th Cong., 2d Sess. 580 (1842)
  12. H.R. Rep. No. 271 at 1–18 (27th Cong., 3d Sess., 1843)
  13. H.R. Rep. No. 684 at 4 (29th Cong., 1st Sess., 1846)
  14. Richard Hildreth, The History of the United States of America 486-89, 584-85 (New York, Harper & Brothers Publishers 1856)
  15. A Compilation of the Messages and Papers of the Presidents 17891897 at 2284 (James D. Richardson ed.1896)
  16. James Wilson, On the Legislative Authority of the British Parliament, in 2 The Works of James Wilson 505, 520 (Chicago, Callaghan & Co. ed. James DeWitt Andrews 1896)
  17. The Writings of Thomas Jefferson Volume IX 1807–1815 64 (Paul Leicester Ford ed.) (1898)
  18. Irwin S. Rhodes, What Really Happened to the Jefferson Subpoenas, 60 A.B.A. J. 52, 53 (1974)
  19. Select Comm. on Pres. Campaign Activities, Appendix to the Hearings of the Select Comm. on Pres. Campaign Activities of the U.S. Sen.: Documents Related to the Select Comm. Hearings, Pt. I, at 740 (1974)
  20. James K. Polk, 1845–49, Cent. Intelligence Agency (Mar. 19, 2007)
  21. Louis Fisher, Jefferson and the Burr Conspiracy: Executive Power Against the Law, 45 Presidential Studies Q. 157, 169 (2015)

President Trump’s lawyers have argued that the Constitution makes the president completely immune from being sued in state court even when the lawsuit concerns pre-office conduct. The president first made this argument in Zervos v. Trump, which concerned allegations that President Trump defamed a woman who accused him of groping her. He reprised the arguments in People of the State of New York v. Trump, which concerned allegations that the Trump Foundation violated New York charities law.

These arguments are wrong as a matter of constitutional law. In Clinton v. Jones, the Supreme Court made clear that presidential immunity only extends to the president’s official acts, not his unofficial conduct. Of course, President Trump could not take an official presidential act before assuming office.

Protect Democracy has filed amicus briefs in both of the aforementioned cases reiterating the argument made in Clinton v. Jones and arguing that the president should not be immune from suit in state court. This is the first time this argument has been litigated.

Zervos v. Trump Documents

NY v. Trump Foundation Documents

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