I wrote this post back in July. But it’s more relevant now than it was then. The headline is that Thomas Jefferson very clearly didn’t agree with John Roberts about presidential immunity. Jefferson didn’t write the Constitution, of course. He wasn’t even there. He was in France at the time. But his argument about this question has been rattling around my head ever since I happened upon this particular letter of his written in 1810, a couple years after he left the presidency. In short, Jefferson’s argument was that there are some occasions in which it would not only be permissible for a president to break the law or act outside the Constitution — he might in fact be obligated to do so. The key was that the president must submit himself for judgment, or as he put it, “throw himself on the justice of his country and the rectitude of his motives.” In other words, a president would be obligated to act and then, in essence, turn himself in. Far from having any immunity for his actions, it is precisely the responsibility of such high office to take on the risk of punishment. Again, as he put it: “The officer who is called to act on this superior ground, does indeed risk himself on the justice of the controlling powers of the Constitution, and his station makes it his duty to incur the risk.”
It is an additional signifier in Jefferson’s mind that he speaks here of the president as the chief “officer” of the state. In other words, the President isn’t a king. He is at the end of the day simply the most senior officer of the state, the chief executive, shall we say. We are far, far at the moment from the theoretical possibility of Donald Trump facing justice for the crimes he is now authorizing or committing himself. But it’s highly relevant to remember that the President is just another citizen, authorized by the constitution to perform certain duties for the American people. He’s not above the law, no matter what the corrupt Court says. Here’s the post.
