This essay is directly responsive to one of the most pressing issues currently before the courts of the United States: the question of whether former Presidents enjoy immunity from criminal prosecution for acts they committed in office. Building upon the recent ruling of the United States Court of Appeals for the D.C. Circuit in United States v. Trump, 91 F.4th 1173 (D.C. Cir. 2024) this essay argues that the clear answer to that question is a resounding “no”.

Former President Trump, who has now appealed the D.C. Circuit’s ruling to the Supreme Court, contends that post-presidential criminal immunity is implicit in the Constitution of the United States. Embracing the principle that the Constitution “cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed”, Ex Parte Grossman, 267 U.S. 87, 108–109 (1925), this essay analyzes that claim in the light of the pre-revolutionary common law and the writings of the Framers and their contemporaries. Drawing from these sources, this essay demonstrates that the Constitution reflects a clear intent on the part of its Framers to cleanly break with the historic tradition of the sacred and inviolable executive. On these bases, this essay concludes that a doctrine of post-presidential immunity from criminal prosecution is not merely—as the Court of Appeals properly held—unsupported by positive law, but, moreover, both contrary to the Framers’ intent and fundamentally incompatible with the Constitution of the United States. It therefore urges the Supreme Court, when deciding the issue for the final time, to consider the thousand-year-old history underlying Mr. Trump’s claims to immunity and to reject those claims as incompatible with the republican government established by this country’s founders.