The Founders were hardly all wise or all knowing, but they did understand a history that we have now forgotten. There’s a reason that they so carefully included accountability for governors, and presidents, and wanted it for kings. They not only experienced abuses of power at the hands of royal governors, and at the whims of kings, abuses they recounted in the Declaration of Independence. They knew as basic history that this question was at the center of disputes over the actions of unrestrained monarchs during England’s two revolutions in the seventeenth century.
The 1686 case of Godden v. Hales affirmed the power of James II, king of England, to ignore all laws and not be bound by them. Like the decision in Trump v. U.S., the judges could cite no substantial precedent. Before the decision, James II personally interrogated the justices, all of whom held their positions at his pleasure. When it appeared that some of the 12 justices on England’s highest court might not rule as he wished, James II fired them and replaced them with other more amenable justices. After the decision, which cited “the King’s will,” James II’s actions became increasingly egregious, so much so that there was a revolution against him, called the “Glorious Revolution” because his soldiers refused to fight for him. The Convention Parliament that met afterward, in the spring of 1689, requested all of the records from the case be brought to them. They then fired all of the high court justices, levied fines on them, ruled that they could never again hold any office. They also decreed that no high court decisions from the reign of James II could ever be cited as precedent.
Today’s Supreme Court has just recreated one of the most despicable cases in English history, a case that signified the apex of absolutism in British history and was repudiated by a revolution for the damage it caused. Their language about presidents facing no responsibility for criminal actions if they are remotely related to their official responsibilities is substantially the same ruling for Trump that Godden v. Hales was for the king of England in 1686.
As Sotomayor summarized in her dissent: “When he uses his official powers in any way, under the majority’s reasoning, he will now be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.” She concluded that “in every use of official power,” a power that includes pretty much any part of a president’s official role, “the president is now a king above the law.”