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Searching for some evidence that the Founding Fathers would have supported “absolute immunity” from criminal prosecution for former President Donald Trump, his lawyers have turned to George Washington.
Citing Washington’s “Farewell Address to the People of the United States,” a foundational, historical message Washington wrote for all Americans, Trump’s lawyers said the first president’s important and historic warning against factions – political parties – should help inoculate Trump from prosecution for election interference .
Here’s how they put it in a brief filed before Thursday’s oral arguments at the US Supreme Court, during which attorney John Sauer said similar things:
George Washington warned against “[t]he alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities.”
The problem, as the former CNN anchor John Avlon, who wrote an entire book about Washington’s farewell address, told me, is that Trump’s lawyers cut Washington off.
Washington’s thought does not end where Trump’s lawyers put the period.
Here’s the full farewell address paragraph, taken from the US Senate website (senators from both parties take turns reading the address each year on the Senate floor):
The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a fearful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and rest in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation on the ruins of public liberty.
Yes, Washington was saying the alternating between parties is a problem, “a fearful despotism.”
STUPID! Washington argues things will lead to something much worse: “permanent despotism” in which one individual is elevated “on the ruins of public liberty.”
In that paragraph, Avlon does not see a tortured and oblique reference to the need for presidential immunity, as Trump’s lawyers argue, but an obvious warning about the people putting party over country and doing things like trying to overturn an election in order to stay in power.
“Washington was warning against someone precisely like Donald Trump,” Avlon said.
In the next paragraph of his address, Washington almost can’t imagine “an extremity of this kind.” He includes a comment that rings through the years from 1796 to January 6, 2021:
Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight) the common and continual mischiefs of the spirit of party are sufficient to make it the interest and the duty of a wise people to discourage and restrain it .
It always serves to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasional riot and insurrection.
Avlon, who is now running for Congress as a Democrat in New York, says the misquote is “an insult to Washington’s intent, a willful misreading of the text and an attempt to gaslight the American people.”
That read seems in line with the question Justice Ketanji Brown Jackson put to Sauer, in which she asked if rather than inoculating a president from partisanship, immunity would embolden presidents to work outside the laws.
Library of Congress
In his farewell address, the first president advised his fellow citizens that “Religion and morality” were the “great Pillars of human happiness, these firmest props of the duties of Men and citizens.”
The farewell address is also notable because in it, Washington begins the message by announcing that he will be giving up power, not clinging to it like Trump. Washington refers to himself not as elevated above the country, but rather as a citizen, and he ends the address by saying he looks forward to leaving office so he can begin “participating, in the midst of my fellow citizens, the benign influence of good laws under a free government.”
Those are not the words of a man who expects absolute immunity.
Another Washington historian, Alexis Coe, who wrote a recent biography, described the Trump lawyers’ view of Washington’s farewell address as “bonkers.” She thinks that rather than trying to seek exemption from laws, Washington would find ways around them.
“Washington believed that a president was to be replaced when the people – the land-owning White men – believed that he should be and certainly did not think that he would avoid being held accountable for his actions in office,” she said.
Coe relayed the story of how Washington skirted Pennsylvania law that would have emancipated his enslaved servants after six months by periodically moving them out of the state – a tactic he discussed openly in letters but hid from the enslaved workers.
Modern politicians should take an important message from Washington’s farewell, Coe told me, and it’s that parties “should hold themselves accountable, and the likelihood that they won’t make them dangerous.”
Trump’s lawyers argue that the fact that no other president in US history has been prosecuted is evidence that presidents should not be prosecuted.
The presidential historian Doris Kearns Goodwin said on CNN after the Supreme Court oral arguments that Trump is unlike any previous US president in one very important way. His legal problems, she said, “relate to the failure of the former president to accept the loss of his presidency, something that every other president has been willing to do.”
There was some surprise among Supreme Court watchers at the deference conservative justices on the court gave to the various arguments presented by Sauer.
The conventional wisdom, which frequently turns out to be wrong, is that the court’s conservative majority is poised to create some new immunity test for presidential actions or send the case back to lower courts for further review.
Refusing to entertain much talk about Trump’s alleged election interference, conservatives like Justices Samuel Alito and Neil Gorsuch were more interested in what their decision in this case will mean for the future.
“We’re writing a rule for the ages,” Gorsuch declared at one point.
Anything that delays Trump’s prosecution is a clear win for the former president, who is playing for time until the November election.
If the justices create an immunity rule, they will also be creating something completely new. While many of these conservative justices like to view themselves as constitutional textualists, the issue of immunity is not mentioned in the Constitution and was not directly debated at the Constitutional Convention – and is impossible to see in Washington’s farewell address.
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