This principle is known as the rule of law, and America’s Founders knew it was essential to our republic.
John Adams, quoting James Harrington, believed in “a government of laws, not of men.” “Empire of laws, not of men,” Harrington wrote, is “according to ancient prudence.” In contrast, “modern prudence” counsels that “some man, or some few men, subject a city or a nation, and rule it according to his or their private interest: which, because the laws in such cases are made according to the interest of a man, or of some few families, may be said to be the empire of men, and not of laws.” The empire of laws is concerned with right; the empire of men, with power.
The Supreme Court has made this a national principle when it declared, “No man in this country is so high that he is above the law. . . . [The law] is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy.” United States v. Lee, 106 U.S. 196, 220 (1882); accord Butz v. Economou, 438 U.S. 478, 506 (1978).
The rule of law even applies to presidents.
A president enjoys absolute immunity “from damages liability for acts within the ‘outer perimeter’ of his official responsibility,” Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982), the Court has made clear that absolute immunity does not extend to any “unofficial conduct” that falls beyond that outer perimeter, Clinton v. Jones, 520 U.S. 681, 693 (1997); see also id. at 694 (explaining that the Court’s reasoning in Fitzgerald “provides no support for an immunity for unofficial conduct”). In allegedly inciting a riot at the U.S. Capitol to forcibly interfere with Congress’s certification of the 2020 presidential election results, former President Trump acted well beyond the scope of his official responsibilities as president. In fact, the Constitution and federal law expressly require Congress to certify the Electoral College’s votes, see U.S. Const. art. II, § 1, cl. 3, and this constitutionally mandated process was ongoing when Trump allegedly prompted his supporters to “engage in tumultuous and violent conduct,” to interfere with it.
Consistent with this maxim, the Supreme Court has acknowledged that a president is absolutely immune from private suits for damages challenging his “official acts,” Fitzgerald, 457 U.S. at 754 (emphasis added)—or “acts within the ‘outer perimeter’ of his official responsibility,” id. at 756—but it has “never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity,” Jones, 520 U.S. at 694. In fact, the Court has flatly rejected claims for absolute presidential immunity for conduct beyond the “outer perimeter” of the president’s official responsibility, holding that a president remains “subject to the laws for his purely private acts.” Id. at 696.
In Thompson v. Trump, the U.S. District Court for the District of Columbia considered whether former President Donald Trump is entitled to absolute presidential immunity from damages liability for allegedly inciting a riot at the U.S. Capitol. On February 18, 2022, the District Court for the District of Columbia issued its decision. Judge Amit Mehta rejected former President Donald Trump’s bid to dismiss three consolidated lawsuits brought by 11 congressional representatives and two Capitol police officers to hold Trump to account for his role in the Jan. 6, 2021, insurrection.
Trump’s nonimmunity, the district court reasoned, were actions leading up to and on Jan. 6 did not relate to his official duties but rather to “his efforts to remain in office.” Thus, “[o]rganizing the January 6 Rally,” the opinion states, “involved no presidential function.” Moreover, the court found that one could plausibly read his words on Jan. 6 as “directed to inciting or producing imminent lawless action and [were] likely to produce such action.” The quotation states the Supreme Court’s test in Brandenburg v. Ohio, for words unprotected by the First Amendment. Even more far reaching was the court’s determination that Trump’s role in an alleged conspiracy intended to interfere with congressional duty was so unprecedented that ordinarily close legal questions bend in favor of an answer that allows a suit against him to proceed.
Washington and Adams are resting peacefully since the rule of law, not the rule of passion, has been upheld.