How to Put America's Elected Monarch on Trial

In the fall of 1792, France’s National Convention reached a momentous decision. Not only would former King Louis XVI stand trial, charged with 33 separate crimes against the French nation; the Convention itself, not a criminal court, would try him. Many deputies opposed taking on the role of a court. Some wanted Louis to go on trial as an ordinary criminal. Maximilien Robespierre insisted that no trial was needed at all, since the French nation had already pronounced sentence upon Louis by overthrowing him the previous August. But in the end, it was the argument of Louis-Antoine de Saint-Just that prevailed. “This man must reign or die,” he said of Louis. “It is impossible to reign innocently…  Citizens, the court which must judge Louis is not a judicial court. It is a council, it is the People, it is you.” The Convention put Louis on trial that winter, convicted him, and sentenced him to death.

This debate has come to mind repeatedly over the past year, as grand juries have returned one criminal indictment after another against Donald Trump. Even as the Republican base screams about politically inspired prosecutions, liberals have held steadfast to the idea that no person is above the law. It is a long-standing tenet of American republicanism (small “r”). “In Republican Governments the Majesty is all in the Laws,” wrote John Adams in 1776. “They only are to be adored.” The Republican base agrees with it as well, to judge from their eagerness to try President Biden as a criminal. “If Joe Biden took $5M in bribes, he should be thrown in prison,” Senator Ted Cruz tweeted last week. And other countries have set an example for us. Presidents and prime ministers of France, Italy, South Korea, Brazil, Taiwan, and Argentina are just a few of the scores of leaders from around the world convicted of felonies in recent years.

But trying a former president in an ordinary court, for alleged crimes connected to his presidency, is not actually such a straightforward matter.

From the very start, the office has separated presidents from ordinary citizens. When George Washington assumed it in 1789, he enjoyed a degree of absolutely extraordinary adulation. In describing him, his admirers had no compunction about calling him “god-like.” John Adams himself had come to believe by this point that the United States, to hold together, needed “that species of republic called a limited Monarchy…  Our Ship must ultimately land on that shore or be cast away.” He pushed hard, if unsuccessfully, for presidents to be addressed formally as “Your Highness.” Washington’s aura soon tarnished in the harsh partisan politics of the 1790’s, but it recovered quickly enough after he left office in 1797, and by the time of his death in 1799 had reached unprecedented heights (for more on this, see my book Men on Horseback). And while few if any other presidents have enjoyed the same sort of reputation as Washington, something of his aura did attach itself to the office, in a classic case of what Max Weber called the routinization of charisma. Like a monarch, a president does not simply represent the nation, but symbolically embodies it. As long as presidents have this status, which has often had an important unifying function in American history, we can’t say of them that they are simply ordinary citizens.

For this reason, it is worth paying heed to Saint-Just’s logic. The best judge for such a figure is the nation itself, through its formally elected representatives. And, of course, the U.S. Constitution makes provision for such judgment in the form of impeachment.

Of the three current and one likely indictment against Donald Trump, by far the most serious are the two directly related to his attempt to steal the 2020 election: the federal indictment already handed down, and the one apparently coming in Georgia. But the nation as a whole has already effectively put Trump on trial for this high crime, in his second impeachment in early 2021. True, the actual article of impeachment focused on his incitement of the attack on the Capitol of January 6, not on the slates of fake electors, the attempt to block certification of the election by Congress, or the attempted vote stealing in Georgia. But the House of Representatives certainly could have impeached Trump for these things as well.

Of the two other indictments, the one focusing on hush payments to Stormy Daniels is widely recognized as weak: a felony charge for what would most often be treated as a misdemeanor. The indictment for mishandling of presidential papers is far more serious, but is directly connected to Trump’s presidency, and so also might have been better handled by Congress.

And consider this key point. Imagine that ten more Republican senators had shown some courage on February 13, 2021, and voted to convict Donald Trump during his second impeachment trial, thereby forever barring him from re-election. Would any of the current prosecutions still be taking place? I doubt it very much, and this suggests, again, that Saint-Just was right. The legislature, as the representative of the nation, was the appropriate body to handle a president’s crimes.

Yes, given our current hyper-polarized and divided politics, a Senate conviction for any high crime considered “political” is in practice impossible. If the House of Representatives impeaches President Biden this year, acquittal is again a certainty. But this fact does not imply that the ordinary courts should be turned to as a substitute for Senate conviction, as in the Trump’s case. Better, perhaps, to let the system fail. The inability to convict presidents for high crimes might actually provide the impetus needed finally to achieve some much-needed constitutional reform. This is admittedly a dangerous course of action. But allowing criminal courts to function as a substitute for congressional action has its dangers as well. I don’t think that the current prosecutions, with the possible exception of New York’s, have been politically motivated. But the Republicans believe they are, and are thirsting for revenge, in the form of politically motivated prosecutions of their own against Democrats as soon as they return to the presidency. It’s all too easy to imagine a future in which our judicial system becomes more and more of a political weapon.

Like most Democrats, I think Donald Trump very much deserves to serve time in prison and seeing him in an orange jumpsuit would not displease me in the least. But on political principle, I still don’t think it is a great idea to see him tried in a criminal court. On this point (if on few others) I follow Saint-Just.