A 'ruse': Legal expert busts conservative claims of 'originalism'

03 July 2024

Many MAGA Republicans and supporters of the Federalist Society have praised the Roberts Court for their emphasis on "originalism" or "textualism."

But law professor and former federal prosecutor Kimberly Wehle is vehemently disdainful of that claim in an op-ed published by The Hill on July 2, arguing that the High Court's controversial 6-3 presidential immunity ruling in Trump v. the United States exposes "originalism" or "textualism" as a "ruse."

The Court's GOP-appointed justices, Wehle notes, "purport to follow a constrained approach to the Constitution" — adding that the Trump v. the United States decision doesn't do that at all.

"Let us consider what the Constitution actually says about immunity," Wehle explains. "Article II gives the president his job description, making him 'commander in chief of the Army and Navy of the United States, and of the militia of the several states'…. There's nothing whatsoever in the Constitution about immunity for presidents, unlike for members of Congress under the Speech and Debate Clause."

The former federal prosecutor continues, "In other words, the Framers knew how to afford immunity to federal officials when they wanted to. They didn't give it to presidents. A true textualist might be expected to leave things there and reject Trump's claim of immunity from prosecution for official acts as president."

Wehle emphasizes that the Framers "took pains to state in plain English that presidents, even after being impeached, can be indicted, tried, convicted and punished for committing crimes."

"If that weren't enough," Wehle argues, "a true conservative might then look to the Framers' original intent for definitive guidance, which (Justice Ketanji Brown) Jackson highlights in her dissent. Most American middle schoolers know that presidents aren't kings, so this should be an easy one."

Kimberly Wehle's full op-ed for The Hill is available at this link.

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