After Chutkan meticulously addressed and rejected Trump’s immunity claim, special counsel Jack Smith sought an expedited review by the Supreme Court. The high court declined to weigh in before the D.C. Circuit rendered its decision. That is the proceeding in which the conservatives submitted a succinct takedown of Trump’s arguments.
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.
Trump’s notion that Article II means he can do whatever he wants is a repudiation of our constitutional system that rejected a monarchy. In an era in which the GOP attempts to intrude into every corner of life — from banning abortion and books to micromanaging health care for LGBTQ+ youths — it’s helpful to remember that limited government used to be a fundamental principle for conservatives. Presidents are not kings; government is not all-powerful. Such ideas are now an anathema to Trump’s MAGA party.
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.”
Whereas Trump and his MAGA allies continually sought to interfere with and take over other branches’ powers (e.g., robbing Congress of the power of the purse, ignoring more than 60 post-election court decisions), actual conservatives recognize that the very structure of the Constitution is designed specifically to prevent a tyrannical figure like Trump from seizing all the functions of government to the detriment of individuals and other levels of government (i.e., the states).
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.
In spelling out these arguments in this fashion, the amicus brief not only dismantles Trump’s preposterous claims to immunity but also rebukes the entire GOP that has followed Trump into a thicket of lawlessness, authoritarianism, violence and chaos. Its authors thereby vividly illustrate how far Republicans have come in abandoning liberty, limited government, judicial restraint and fair play.
Only if Trump loses and the MAGA movement’s lurch to authoritarianism is defeated can the GOP reemerge as a legitimate pro-democracy, center-right party based on the principles outlined in the amicus brief. If that ever occurs, the amicus brief authors might be just the people to advise and lead their former allies to return to the values they once held dear.
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