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Wednesday, July 10, 2024

John Roberts Rewrites History

The majority opinion in Trump v. U.S. claims that Federalist No. 70 supports the theory of absolute presidential immunity, when in fact it says pretty much the opposite. Yes, it extols "energy in the executive," but it also lists four "ingredients" for an energetic executive, none of which is immunity. And Federalist No. 69, also written by Alexander Hamilton, actually notes the circumstances in which a former president could be “liable to prosecution and punishment in the ordinary course of law.”

But no matter. All it takes is a poetic rewrite to harmonize the Federalist Papers with Roberts's invention of presidential immunity (with apologies to A.A. Milne):

James, James, Madison, Madison, founding father was he.

James, James, Madison, Madison, stood just five foot three.

James said to his good pal Hamilton,

Alex he said, said he:

Forget all our capers with Fed'ralist papers,

And just say immunity.

Posted by Steve Lubet on July 10, 2024 at 04:45 AM | Permalink

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