Persecutor Jack Smith is rightly worried. Even with a Trump Hanging Judge, and an all-but-certain DC hanging jury, things aren’t going his way. He’s moving Trump be denied the right to bring up anything about January 6 in a January 6 trial—none of this silly right-to-mount-a-defense nonsense--and that Trump generally be entirely muzzled about pretty much everything else. Hey, you can put innocent Americans in pre-trial detention for years, so why not? But his biggest problem is Presidential Immunity. Smith would have us believe Trump doesn’t have any of that ephemeral, never-before-imagined power. At American Greatness, Paul Ingrassia explains why Smith is wrong:

Showcasing their [the media’s] ignorance of both the Constitution and history, the mainstream media has framed [presidential immunity] 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.

Americans who remember their study of the Constitution from high school may recall the Constitution establishes a single POTUS, in whom all executive power is invested:

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.

Sadly, that essential fact of the Constitution may not be taught in contemporary history classes, where deconstruction and reinvention of history seems to be the norm. A single executive is part of our three-branch balanced republic, and the executive is restrained by impeachment and having to stand for election for a maximum two terms. Unfortunately, the contemporary democrat/Socialist/Communist Party recognizes no restraint, and impeachment has become a favored strategic harassment, a weapon employed for the first time in history against Donald Trump when he was no longer in office.

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. 

Considering Congress has delegated—abandoned—much of its power to an entirely unaccountable and increasingly aggressive and totalitarian Deep State, that point can’t be underestimated.

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. 

Image: George Washington by Gilbert Stuart, wikimedia.org, public domain

George Washington is often rightly called “the indispensable man.” There was no question he would be the Presiding Officer of the Constitutional Convention. Apart from a brief invocation, he said nothing. His mere presence lent to the assembly the necessary, solemn, purpose. There was also no question Washington would be our first president. Displaying selfless wisdom for the ages, he set the precedents of the office, and though he could have been president for life, retired to his farm when his two terms ended.

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. 

Another president displayed selfish arrogance for the ages:

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. 

How can a POTUS function if his actions in office are not immune? I suspect the Supreme Court will soon decide the question. Until a 9-0 affirmation of presidential immunity, the republic hangs in jeopardy.

Mike McDaniel is a classically trained musician, Japanese and European fencer, life-long athlete, firearm instructor and retired police officer and high school and college English teacher.  His home blog is Stately McDaniel Manor.