Courts

Historian Debunks MAGA Attorney's Supreme Court Argument

Donald Trump isn't a king, we shouldn't treat him that way.

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Former President Trump Testifies In Trump Organization Civil Fraud Case

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On Thursday attorneys for Donald Trump had a disturbingly successful day at the Supreme Court arguing that the president of the United States can do anything they want. It was a sad day for Court watchers, as many of the conservative justices seem poised to advance their nakedly political goals over an earnest interpretation of the Constitution.

But one argument by MAGA lawyers in particular has come under scrutiny. John Sauer quoted Ben Franklin during the oral argument — and in the briefing as well. That, alone, isn’t surprising. The right wing of legal thought has latched onto parsing through documents that are hundreds of years old to find a snippet of text that COINCIDENTALLY advances their preferred policy outcome. So citing a beloved founding father? That’s pure money. But there’s a problem with Sauer’s argument.

Historian Holly Brewer, a member of the Brennan Center for Justice’s Historians Council on the Constitution, detailed the issues on social media. Specifically that “Sauer’s interpretation was deliberately misleading. Franklin would be horrified.”

So, what Frankin quote did Sauer try to manipulate? “History furnishes one example only of a first Magistrate being formally brought to public Justice. Every body cried out agst. this as unconstitutional.”

Brewer notes the comments were in reference “to the trial, conviction, and execution of king Charles I of England.” And “Franklin meant that after Charles II was restored to power in 1660, he oversaw the trial and execution of those who signed his father’s death warrant (the ‘regicides”).”

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She contined her breakdown:

6. So when Franklin wrote “Every body cried out agst. this [trial] as unconstitutional,” Franklin meant that English courts viewed the trial of a king as against the ENGLISH constitution.

7. But Franklin then argued that designating the trial of such a “first magistrate” as illegal led to huge problems. Why?

8. Franklin’s speech continued: “What was the practice before this in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in wch. he was not only deprived of his life but of the opportunity of vindicating his character.”

9. Franklin thought trials were better than assassinations (or revolutions) because he thought they were fairer to the accused. Thus he thought trials of chief executives for crimes should be provided for by the US Constitution.

10. Franklin concluded his speech thus: “It wd. [would] be the best way therefore to provide in the [United States] Constitution for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.”

So, the meaning of Franklin’s words seems very different than how Trump’s attorney’s are trying to twist them

12. Once again, Trump’s lawyers are trying to turn a president into a king. That they pretended that Franklin meant that Presidents should not be tried for high crimes– is somewhat shocking to this historian.

13. By leaving out the rest of this quote, Trump’s lawyers seem to have been deliberately misleading the supreme court justices. And while one might suppose that Trump’s lawyers know so little about English history –

14. that they did not know that Franklin must have been referring to the trial of Charles I . . . Surely they understood that the U.S. Constitution was not yet written in June 1787, and that Franklin must have been referring to the (unwritten) British Constitution.

15. It is a strange thing that under the British constitution, kings can still not be prosecuted. (It is probably less dangerous than it would be to allow such immunity in a president or even a prime minister, since they have less power than the latter). https://www.theguardian.com/uk-news/2024/apr/11/courtier-demanded-assurance-king-could-not-be-prosecuted-under-new-welsh-law

16. But there is no doubt that Benjamin Franklin’s position in the Constitutional Convention was that it was better to try a president for his criminal actions that to resort to the other historical alternative to a ruler who commits crimes: assassination.

17. Franklin would have been horrified to be thus represented as a proponent of monarchy. On the last day of the convention, Sept 17, 1787, “A lady asked Dr. Franklin Well Doctor what have we got a republic or a monarchy – ‘A republic replied the Doctor if you can keep it.’”

18. Misrepresenting Franklin’s own words before the highest court in the land, portraying our system as a monarchy, not as a republic, has the potential to transform it into that very monarchy that Franklin’s listeners dreaded to discover in Sept 1787. https://www.loc.gov/exhibits/creating-the-united-states/convention-and-ratification.html#obj8

For what it’s worth, Benjamin Franklin isn’t the only one “horrified” about the arguments in Court on Thursday.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.

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