Above the Law: From Medieval England to Trump v. the United States

Abstract There is nothing unprecedented about prosecuting Donald Trump. While it’s certainly true that no president has (yet) to be indicted, if we look at to the long stretch of English political-legal history, we find many precedents. Because what happened in England fueled the American Revolution and the Framers’ view of the chief executive. As Richard II and Charles I discovered to their cost, acting as if they were above the law could lead to their deposition and eventual death, and the framers agreed. Thomas Jefferson asserted in A Summary View of the Rights of British America (1774), retained “the powers of punishment or removal” of their rulers. Holding the chief executive, whether a king, a prime minister, or a president is irrelevant, to account for alleged crimes is, as the phrase goes, baked into American constitutional law. But the Supreme Court has ruled otherwise. The president now enjoys the immunity Charles I claimed. We are now at the cusp of something without precedent: an absolutist presidency.