Myth: the president has immunity from criminal or civil lawsuits for actions he carried out while he is in office

Truth: the president has immunity from criminal or civil lawsuits for actions he took to ensure the enforcement of recognized laws

Let’s nutshell this: former U.S. president Donald Trump is the focus of many different lawsuits. Some accuse him of financial fraud, some of sexual assault, falsifying records to cover up bribery, removing official documents from the White House to his private home in Florida and concealing that fact, election subversion and racketeering, and for provoking a mob of criminals to attack the U.S. Capitol building, where the U.S. Congress meets, on January 6, 2021, with the purpose of using violence against members of Congress to stop the certification of the 2020 presidential election that removed Trump from office–in other words, treason and insurrection.

All of the suits are grave. The suits about trying to overturn legal election results, by provoking an insurrection and by demanding that the Secretary of State for the state of Georgia demanding that he lie about the results and say Trump won, are the most serious. (“All I want to do is this: I just want to find 11,780 votes, which is one more than we have… Fellas, I need 11,000 votes, give me a break.”)

Trump and his lawyers have claimed that as president, he has “absolute immunity” from any and all criminal prosecution, both in and out of office: “Trump’s lawyers contended earlier this month that he simply can’t be prosecuted for efforts to overturn that election because they related to his official responsibility as president to safeguard federal elections.”

Unfortunately at this critical moment, Americans have sidetracked into discussions about whether U.S. legal precedent supports or conflicts with the claim that a U.S. president is immune from criminal prosecution instead of focusing on the actual threat: Trump doesn’t want his illegal actions to be protected based on his role as president. He wants them protected based on the new idea that the president is allowed to commit crimes. A president (and by extension, anyone who works for him, or in the federal government, or state government, or local government) can do whatever they want because committing crimes is no longer illegal for them.

This isn’t immediately apparent, perhaps, but if we look at the legal precedent people are distracting themselves with we see it emerge very clearly.

Legitimate sources that try to answer the question “does the president have immunity from criminal and civil lawsuits?” usually begin with the 1867 case Mississippi v. Johnson. This case involved the state of Mississippi suing President Johnson in an attempt to forbid him from enforcing the Reconstruction Acts that were meant to protect the newly granted civil rights of black Americans who had been enslaved. The Supreme Court refused to allow this, not because its members supported civil rights–the complete opposite is true–but because it upheld the immunity of a president from “judicial process” related to carrying out the law of the land: “Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among these laws the acts named in the bill…”

Notice that important language: the president cannot be prevented from ensuring that “laws are faithfully executed.” If you have a problem with the law of the land, you have to challenge the constitutionality of that law in court. You can’t challenge the power of the president to enforce the law. Those are two very different things: laws can be challenge; the role of the president cannot. Americans who challenged slavery before the Civil War didn’t sue the men who were president to get them to stop upholding laws that permitted slavery. They challenged those laws in the courts.

Most sources also mention United States v Burr, an 1807 case where the Court ruled that President Jefferson could be required to testify in the treason trial of Aaron Burr, who was his vice-president from 1801-1805. As Constitution Annotated puts it, “Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold information from disclosure based on executive privilege. In the two centuries since the Burr trial, the Executive Branch’s practices and Supreme Court rulings unequivocally and emphatically endorsed Chief Justice Marshall’s position that the President was subject to federal criminal process.”

Next, United States v. Nixon, the 1974 case where the Court similarly ruled that President Nixon could be required to testify if subpoenaed in the criminal case against him and members of his staff. “The President’s counsel had argued the President was immune to judicial process, claiming “that the independence of the Executive Branch within its own sphere… insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications.” However, the Court held, “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” The primary constitutional duty of the courts to do justice in criminal prosecutions was a critical counterbalance to the claim of presidential immunity, and to accept the President’s argument would disturb the separation-of-powers function of achieving “a workable government” as well as “gravely impair the role of the courts under Art. III.”

Finally, the Court upheld that ruling in the 1997 case Clinton v. Jones when it denied President Clinton’s motion to dismiss the sexual harassment charges filed against him by Paula Jones on the grounds of presidential immunity. As FindLaw puts it: “The Court held that its precedents affording the President immunity from suit for his official conduct – primarily on the basis that he should be enabled to perform his duties effectively without fear that a particular decision might give rise to personal liability—were inapplicable in this kind of case. Moreover, the separation-of-powers doctrine did not require a stay of all private actions against the President. Separation of powers is preserved by guarding against the encroachment or aggrandizement of one of the coequal branches of the government at the expense of another. However, a federal trial court tending to a civil suit in which the President is a party performs only its judicial function, not a function of another branch. No decision by a trial court could curtail the scope of the President’s powers.”

Again, the key here is that a president must be allowed to “perform their duties”–that is, ensuring that laws are enforced. That’s what the president has the power to do. No president can be punished for performing their duty of ensuring that existing laws are carried out. But any and every president can and must be punished for breaking the law.

These Supreme Court rulings and the precedent they set are being examined and argued by legal experts and pundits and just about everyone else. The question is always, will these rulings be upheld by the current Supreme Court, packed as it is with members who have already made it clear that they have an agenda to overturn every ruling that supports civil rights in this country?

But that isn’t the right question, because again, that’s not the claim Trump and team are making. They are not claiming that Trump did nothing illegal. They are claiming that it’s okay that he did. They are claiming that the president can commit crimes–acts that are clearly illegal for everyone else–without consequence. Most recently, Trump lawyer John Sauer told the D.C. Circuit Court of Appeals that “a president directing SEAL Team Six to kill a political opponent would be an action barred from prosecution given a former executive’s broad immunity to criminal prosecution”. 

Former president Donald Trump’s lawyer argued that presidential immunity would cover the U.S. president ordering political rivals to be assassinated by SEAL Team Six.

During a hearing at a federal appeals court on Tuesday, Trump’s lead lawyer John Sauer made a sweeping argument for executive immunity, essentially saying that only a president who has been impeached and removed from office by Congress could be criminally prosecuted. Therefore, Sauer argued, the former president should be shielded from criminal prosecution.

One of the judges asked Sauer: “Could a president who ordered SEAL Team 6 to assassinate a political rival, and is not impeached, would he be subject to criminal prosecution?”

Sauer responded: “If he were impeached and convicted first… there is a political process that would have to occur.”

The argument here is: if the president breaks the law, he can’t be prosecuted for it because the president is allowed to commit crimes.

Crucially, the argument is not if the president is ensuring that laws are enforced, he can’t be prevented from doing so.

That’s what’s at stake here. That’s what is really being argued, somehow, in this country. It’s no surprise. Almost exactly 8 years ago, when he was a presidential candidate, Trump said “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?” And somehow this did not immediately disqualify him in the eyes of his supporters and people who were undecided. Somehow this didn’t end his campaign. He became president, broke the law repeatedly, tried to overthrow the government when he lost the election… and still we actually sit and debate whether he should be tried for breaking the law. For treason. For insurrection. For election subversion.

In these dark times, there is little hope that Trump will not prevail. And it’s not just about him–so many, many people seem so very eager to follow in his footsteps and go even farther into dictatorship. But that doesn’t mean we shouldn’t do all we can, wherever we are, to fight for the rule of law, the legal process, and the president being subject to the law. It’s a fight that is only going to require more and more of our energy going forward. American democracy has always been deeply flawed and incomplete, but its trajectory has always been toward the expansion of civil rights despite the dogged, unrelenting, hate-filled attempts of the undemocratic to stop it. The forces for that reversal are enjoying a heyday right now, but the fight is not over. Myth can’t be allowed to become truth–not on our collective watch.

Happy New Year 2024! let’s hope.

Now you know that we’re serious here at the HP about updating old posts with new information. As we noted when we updated The First Thanksgiving, we’re always learning and growing right along with you:

Yes, we strive to be accurate in our posts, but they only reflect the extent of our knowledge at the time of posting. We realize now, many years in, that some of our content is now badly outdated and even inaccurate–and, importantly, that it was inaccurate at the time of writing, because our own knowledge was incomplete.

So in short, we have to myth-bust ourselves as well as everyone else, and today we’re looking at our much-traveled post on “The City Upon a Hill”, which you’ll find at the top of the site as its own page, such is its popularity with people searching for information on this by-now familiar phrase. Now that we’ve posted this update on the main page, we’ll correct the dedicated page as well.

Again, we’ll do as we always do when close-reading a text: our comments follow the original text, indented and set off by a long dash.

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The “City upon a Hill” section of the sermon called “A Model of Christian Charity” was written in 1630 by the Puritan leader John Winthrop while the first group of Puritan emigrants was still onboard their ship, the Arbella, waiting to disembark and create their first settlement in what would become New England. The “City” section of this sermon was pulled out by later readers as a crystallization of the Puritan mission in the New World.

–Oh it’s very embarrassing to find such an error right at the start. The “Model” was not a sermon. Because Winthrop was not a minister. It was what he would have called a “lay sermon” or “lay exhortation”: a religious meditation written by a layperson (not clergy) and shared with others informally. The Puritans encouraged each other to share their spiritual seeking and reflections for their mutual benefit. They did this with friends, their families, small groups gathered to discuss a recent sermon and, sometimes, during worship services. If there was no minister to tend a congregation, respected laymen might speak informally to the people who gathered on the sabbath. This was not a sermon, because the laymen could not take the place of a minister ordained by God. Only an ordained minister could administer communion and baptize people (the only two sacraments the Puritans observed). But a layman (yes, always a man) could get up in front of a group of people gathered to worship and speak to them until the were able to hire a minister. This was what they called “exhorting” or “exhortation”.

So the “Model” was a lay exhortation written by John Winthrop. Which makes sense–he was deeply respected for his spirituality. But everything else we are taught about the “Model” and its “City” section is very wrong.

Cut to Daniel T. Rodgers’ amazing book: As a City on a Hill: The Story of America’s Most Famous Lay Sermon”, which we read avidly here at the HP. He tells the story better than we can here, but let’s hit the main points (all on page 4):

• “None of those who voyaged with John Winthrop to the Puritan settlement in New England left any record that they heard Winthrop’s words…”
• “Most likely ‘A Model of Christian Charity’ was never delivered as a sermon at all.”
• “Although copies… circulated in England during his lifetime, by the end of the 17th century they had all literally vanished from memory.”

One copy was found in 1809, but not printed until 1838. It promptly disappeared again, and it wasn’t until the 1980s that it fell into the spotlight, through the efforts of two very different people: politician Ronald Reagan (but really his speechwriters) and the literary scholar Sacvan Bercovitch. Each side resuscitated the lay sermon with very different purposes. If you want to know why Reagan’s side won out with its COMPLETELY mythical reading of John Winthrop’s work… get Rodgers’ amazing book.

For now, we move on to the rest of our post, which thankfully requires no further heavy-lifting. You can scroll down to the very last paragraph for our final change.

Of course, as with any topic touching on the Puritans, there’s some myth-busting to be done. By now, the “City upon a Hill” excerpt has come to represent irritating Puritan pridefulness—they thought they were perfect, a city on a hill that everyone else would admire and want to emulate. In reality, the excerpt is far from a back-patting exercise. It is a gauntlet laid down to the already weary would-be settlers. Let’s go through it:

Now the only way to avoid this shipwreck and to provide for our posterity is to follow the Counsel of Micah, to do Justly, to love mercy, to walk humbly with our God:

The “shipwreck” Winthrop refers to is the wrath of God that falls on peoples or nations who fail to do God’s will. Earlier in the sermon, Winthrop has been at once warning the people that they must not fail in their efforts to set up a godly state in the new World and reassuring them that this does not mean they can never make a mistake. God is with them, and will suffer small failings. But if, like the government and church of England, the Puritans forsake their mission to create a truly godly society, they will suffer the wrath of God. This is the shipwreck to be avoided.

…for this end, we must be knit together in this work as one man, we must entertain each other in brotherly Affection, we must be willing to abridge our selves of our superfluities, for the supply of others necessities, we must uphold a familiar Commerce together in all meekness, gentleness, patience and liberality, we must delight in eache other, make others Conditions our own, rejoice together, mourn together, labour, and suffer together, always having before our eyes our Commission and Community in the work, our Community as members of the same body, so shall we keep the unity of the spirit in the bond of peace, the Lord will be our God and delight to dwell among us, as his own people and will command a blessing upon us in all our ways…

This is a beautiful passage, reminiscent of the Sermon on the Mount in its focus on mercy, kindness, sharing, and other selfless qualities. The Puritans will not succeed by harrying out the sinner or otherwise smiting evil, but by loving each other, caring for each other, and “abridging our selves of our superfluities, for the supply of others necessities” (that is, there will be equality of wealth, with no one living in luxury while others starve). They will delight in each other,  making others’ conditions their own, and they will do all this to create a natural community of faith. The point here is that religious faith will not be mandated or policed or forced on anyone. It will be generated naturally by the hope and love and faith of the people themselves. It will be an effect, not a cause. The Quakers would try to live out this same philosophy decades later.

…so that we shall see much more of his wisdom power goodness and truth than formerly we have been acquainted with:

And how. That’s an understatement. The projected society would be almost unequalled anywhere in the known world.

…we shall find that the God of Israel is among us, when ten of us shall be able to resist a thousand of our enemies, when he shall make us a praise and glory, that men shall say of succeeding plantations: the lord make it like that of New England:

Here comes the crux of the excerpt. Why will later settlers hope their societies will be like New England? Because of the love and comradeship, care and goodwill in New England. Notice that so far Winthrop has been urging his people to be caring and loving and selfless. He isn’t saying they already are all those things. He isn’t boasting about a pre-existing condition. He is urging them to become caring and loving and selfless, in the name of their godly mission, so that they will truly succeed. If—and it’s a big if—they succeed in becoming all those good things, their society will be admired. It’s not really that the Puritans will be admired so much as their society will be admired. There’s no self in this for Winthrop; it’s all about serving God as a society, and not about individuals becoming famous for their virtue. To him, there’s a difference. Fame may come as a result of serving God, but it’s the serving of God that matters.

…for we must Consider that we shall be as a City upon a Hill, the eyes of all people are upon us; so that if we shall deal falsely with our God in this work we have undertaken and so cause him to withdraw his present help from us, we shall be made a story and a byword through the world, we shall open the mouths of enemies to speak evil of the way of God and all professors for God’s sake; we shall shame the faces of many of God’s worthy servants, and cause their prayers to be turned into Curses upon us till we be consumed out of the good land whether wee are going:

First, we see what “city on a hill” really means: it doesn’t mean perfect, it means visible. They will be under a microscope, unable to hide their failures from all the eyes trained on them. No one wants to live in a city on a hill, because all of your faults and failings are in plain view.

Second, Winthrop wasn’t just speculating. This fate of becoming a byword for failure had already befallen every English colony in North America by 1630. Roanoake had disappeared, and Jamestown was so well-known in England for the horrors its unprepared settlers suffered that by the time the Puritans sailed their main goal was to avoid Jamestown’s very well-publicized failures. Among the many reasons the Puritans did not want to settle in Virginia was to avoid contamination with Jamestown’s perpetual bad luck (which the Puritans put down in large part to the colony’s lack of a commission from God). Even Plimoth Plantation, founded by Separatists just 10 years earlier, wasn’t exactly thriving. The Puritans settled far from the Pilgrims. So there was evidence, to Winthrop, that God had already withdrawn his support from all previous English settlements. The stakes were high.

…And to shut up this discourse with that exhortation of Moses, that faithful servant of the Lord in his last farewell to Israel [in] Deut. 30. Beloved there is now set before us life, and good, death and evil in that we are Commanded this day to love the Lord our God, and to love one another, to walk in his ways and to keep his Commandements and his Ordinance, and his laws, and the Articles of our Covenant with him that we may live and be multiplied, and that the Lord our God may bless us in the land whither we go to possess it:

In closing (“to shut up this discourse”), Winthrop dramatically positions his group on the very edge of life and death, good and evil; they have never been more free to choose which way they will go. It’s all up for grabs. If Winthrop was sure that it would be easy for the Puritan to make the right choice, because they were so much better than everyone else in the world, he wouldn’t have hammered this point home. He wouldn’t have had to show them how high the stakes were, and he wouldn’t have supposed there was even a choice to be made. Since he was a realist, albeit a compassionate one, Winthrop reiterated the fact that the Puritans too, like everyone else, had to choose good over evil.

… But if our hearts shall turn away so that we will not obey, but shall be seduced and worship other Gods, our pleasures, and profits, and serve them, it is propounded unto us this day, we shall surely perish out of the good Land whither we pass over this vast Sea to possess it:

Again, high stakes. The important thing to note here is what Winthrop considers to be the threat: “our pleasures and profits”. Colonies were founded to make money. Everyone knew that. And even the Puritans would have to repay their investors. They were business people, many of them London merchants, and they would set about creating industry in New England. They were also normal people who loved dancing, music, alcohol, sex, and love, and they would enjoy all those things in their new land. Being a Puritan was not about denial. It was about balance. Enjoy without attachment, enjoy without letting pleasure become your master—this was the Puritan ideal (it’s also very Buddhist—see The Bhagavad Gita).

Therefore let us choose life, that we, and our Seed, may live; by obeying his voice, and cleaving to him, for he is our life, and our prosperity:

Let us choose life: it’s a very positive, very idealistic, beatific closing to the excerpt and the sermon. Winthrop even wrote it out in verse (I didn’t do that here for space reasons). Choose life that we may live, choose God for God is life. This sermon must have truly inspired the Puritans who heard it, in part because it did not confirm their virtue but challenged it. It is an exhortation to do better than they normally would, to try harder, to aim higher. It is not a smug confirmation that they are the best people in the world and that whatever they do will be better than what anyone else does. It is a call to virtue and effort, love and compassion, sharing and helping that does Winthrop and his group credit. In that sense, it is the first of many other great American calls to idealism and justice, including the Declaration of Independence, the Constitution, and the Emancipation Proclamation.

–As we said above, there were likely no “Puritans who heard it” since we have no evidence that John ever delivered this lay sermon/exhortation to anyone. There were 11 ships in what we now call “the Winthrop fleet” that brought Puritans from England in 1630, so there was no way that everyone could have heard it even if John had delivered it during the voyage. It seems clear he wrote it to be published in England, then distributed there and in what he called New England. This was the standard practice for publications by Puritans in New England until a printing press was established in the colonies.

But knowing John, we feel pretty confident in saying that the message to be better people was one he likely delivered many, many times over, to groups large and small, as a matter of course rather than one emotional, dramatic set-piece speech. If only they–and he, for that matter–could have lived up to the call to put personal financial gain aside for the commonwealth. We’d be living in a very different, and much better, world today. As usual, it’s up to us to do what they did not, and take our future into our own hands.