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Is Trump Above the Law?

Contrary to what former US President Donald Trump would have the American public believe, no president enjoys absolute immunity from criminal prosecution. To suggest otherwise is to reject a bedrock principle of American democracy: the president is not a monarch.

BATON ROUGE – Facing criminal indictments in connection with a hush-money payment to an adult-film actress and his efforts to overturn the result of the 2020 US presidential election, Donald Trump claims that, as a former president, he enjoys blanket immunity from prosecution. The US Supreme Court will now decide if he is right. US Special Counsel Jack Smith’s filing to the Court makes a convincing argument that the weight of history – and three precedents, in particular – invalidate Trump’s claim.

The most obvious precedent is the Watergate scandal, which led to an impeachment inquiry and President Richard Nixon’s resignation from office in 1974. Smith stresses that President Gerald Ford’s pardon of his predecessor fully acknowledged “criminal liability,” and that Nixon’s acceptance of the pardon represented a “confession of guilt.” Without Ford’s pardon, Nixon likely would have faced criminal prosecution. If absolute immunity is an inherent power of the presidency, as Trump claims, no pardon would have been necessary.

The other two precedents, Smith argues, are landmark cases more than two centuries apart: the 1807 prosecution of Thomas Jefferson’s former vice president, Aaron Burr, for treason, and the Supreme Court’s decision in Trump v. Vance in 2020.