by Paul Ingrassia
The media has driven itself into a tizzy in recent days, claiming that despite serving as president of the United States (and being poised to reclaim that office in less than a year’s time), Donald Trump should not be granted the same kinds of immunity and executive privilege that every other chief magistrate enjoyed before him. Showcasing their ignorance of both the Constitution and history, the mainstream media has framed the concept as something of a novel innovation for President Trump’s lawyers, who are advocating for “broad immunity,” implying that no other presidential officeholder has ever made that claim. Nothing could be further from the truth.
In fact, it is well-established law that what the media calls “broad” is quite ordinary, mundane even, in the grand scheme of the history of presidential power. Indeed, it may well be argued that Trump’s lawyers have thus far understated the scope of presidential power—whose source originates from Article II, Section I of the Constitution, which states that “executive power shall be vested in a President of the United States of America” (emphasis on one). Notice that, contrary to what the DOJ or intelligence agencies might have one believe, the Constitution’s text specifically delineates one chief magistrate, out of which all executive authority—including those agencies subordinate to the President but under the umbrella of the Executive Branch—is based. This construction is reinforced by the Federalist Papers, which stipulate that “energy in the executive” is “the leading character in the definition of good government” (Federalist 70). Further down in that same article, Hamilton asserts that “the executive power is more easily confined when it is one.” In other words, the Founding Fathers called for an “energetic”—that is, a strong and vigorous—president. An energetic executive might only exist with (what the media terms) “broad” immunity; otherwise, it would prove itself impotent in the face of a national crisis.
In our age of great bureaucratic control over lawmaking, where the permanent administrative state in Washington has effectively usurped the legislative power of the Congress, the necessity for what Hamilton called an “energetic” view of presidential power is arguably greater than ever. The president is the one officeholder in the entire modern Executive Branch, which comprises millions of unelected bureaucrats and officeholders, many of whom operate secretly and subversively, who is directly accountable to the people because he is democratically elected. In this regard, the president is the most (and perhaps only) truly legitimate authority within the executive department. Thus, the need for “broad” executive immunity should be construed not so much as protecting the president’s interests against civil or even criminal culpability. But instead, it is a check against the permanent ruling class over the interests of the American people, whose only true representation within the largest and most powerful branch of government, by far, is that of the President. Gouverneur Morris’ premonition that the President “should be the guardian of the people… against the great and wealthy who, in the course of things, will necessarily compose the legislative body” rings truer than ever today and applies with at least equal, if not greater, force to the unelected administrative state as it does the elected Congress.
This sentiment has been affirmed (and reaffirmed) by courts, including the Supreme Court, over the centuries. In Nixon v. Fitzgerald (1982), the Supreme Court held that President Nixon, who by then was a former President of the United States, was “entitled to absolute immunity from damages liability predicated on his official acts.” In support of its decision, the Court reasoned presidential immunity was a function of “the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” By today’s standards, the Court’s ruling goes far beyond what the media has termed as “broad” claims of immunity by Trump. The Supreme Court in Nixon elaborated that checks against presidential misconduct are limited to such factors as “constant scrutiny by the press,” “vigilant oversight by Congress,” and “a desire to earn reelection, the need to maintain prestige as an element of presidential influence, and a president’s traditional concern for his historical stature.”
Since the dawn of the republic, every president—from Washington to Obama—has invoked presidential immunity and executive privilege on items that went far beyond the scope of what was requested by President Trump in his case. George Washington famously refused to give the House of Representatives critical documents concerning the authorization of the recently negotiated Jay Treaty. It was Washington’s view that such documents could only be handed over as part of an impeachment process, and claimed executive privilege as an absolute right to withhold records in all other cases. Far more damning, Barack Obama frequently asserted executive privilege in scenarios that had no legal or historical precedent. In the famous “Fast and Furious” case, Obama asserted executive privilege to protect his Justice Department from taking a contempt action before a grand jury, despite evidence that his administration had been unlawfully allowing firearms and other military-grade weapons to enter Mexico without congressional oversight. The administration baldly claimed the assertions, initially raised by Senator Grassley, were false, despite overwhelming evidence to the contrary, only to acknowledge months later the existence of such a trade.
The Obama administration notoriously made mincemeat of the concept of executive privilege, using the powers of its office to carry out an illegal spying operation on the would-be 45th President after wiretapping Trump Tower during the 2016 presidential campaign. And heaven knows how frequently the ideas of presidential immunity and executive privilege have been (and will continue to be) invoked by Biden regime lawyers, who are attempting to protect potentially hundreds of thousands of documents implicating Hunter Biden in various pay-to-play schemes conducted overseas when his father was Vice President.
The examples of Obama and Biden illustrate the concept of executive immunity being used to cover up criminal activity, in sharp contrast to President Trump’s example, whose invocation of the idea is consistent with longstanding history and legal precedent. President Trump’s exercise of presidential immunity is in line with the tradition of Washington and the Founding Fathers, who construed the privilege “broadly” in scope, not to shield the president from criminal liability, as occurred with Obama and Biden, but to protect the most democratically accountable member of the executive branch from the subversive influences of the deep state, as is emphatically true for Trump. The media’s ridiculous construction of presidential immunity as applied to Donald Trump would, if taken to its logical conclusion, deny such protection altogether and implicate every single president, from George Washington to Joe Biden, in civil and criminal liability for acts committed in office. Such a construction may appease the yearnings of Trump-hating fanatics in the media and Uniparty establishment, but it is wholly inconsistent with centuries-long precedent. Therefore, it simply cannot stand in any court of law with the integrity to uphold the true and original meaning of the Constitution.
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Paul Ingrassia is a two-time Claremont Fellow and served on President Trump’s National Economic Council. He writes a widely read Substack that is regularly re-truthed by President Trump. His Twitter handle is: @PaulIngrassia.
