Re-examination podcast: Trump v. US through the lens of history

When the Supreme Court heard arguments in Trump v. United States over presidential immunity, it didn’t take long for the intent of the Founding Fathers to take center stage.

“There are amici here who tell us that the Founders actually talked about whether to grant immunity to the president,” Justice Sotomayor said early in the hearing. “And, in fact, they had state constitutions that granted some criminal immunity to governors. And yet they didn’t take it up.”

The amici Justice Sotomayor was referring to are 15 leading Founding Era historians. In an amicus brief, they argued that former President Trump’s claim of permanent criminal immunity runs contrary to the Framers’ intent to avoid creating an elective monarchy.

The job of combing through the historical record and synthesizing the august group’s expertise fell to counsel at the Brennan Center for Justice at NYU School of Law and Friedman Kaplan, led by partners Larry Robbins, Katherine Pringle and associate Ian Bruckner. Over a 34-page brief, they drew upon original sources, including Thomas Paine’s Common Sense, the Federalist Papers, and James Madison’s Journal of the Constitutional Convention, to make the case that no one is above the law.

The brief not only struck a chord with some of the justices but also resonated with the public, garnering attention from MSNBC, The Guardian, Law360 and the Washington Post.

In this episode of Re-Examination, Katherine Pringle and Ian Bruckner discuss their approach to researching and writing the brief, what they learned, and why they think the brief resonated so much.