Thread by @earlymodjustice

1. So what about that Ben Franklin quote that Trump's lawyer, John Sauer, read to the Supreme Court during the Supreme Court case on presidential immunity? Was it accurate? The words are fine, but Sauer's interpretation was deliberately misleading. Franklin would be horrified.

2.Trump's lawyers had in fact included the quote in their latest reply brief before the court, dated April 15. Here it is on page 12 of REPLY BRIEF OF PETITIONER
PRESIDENT DONALD J. TRUMP.

3. What was Franklin referring to, about a "first Magistrate being formally brought to public Justice"? Franklin referred to the trial, conviction, and execution of king Charles I of England.
Charles I's death warrant from January 1649 can be seen here:

4. In the next sentence wherein Franklin said "Every body cried out agst. this as unconstitutional,"
Franklin meant that after Charles II was restored to power in 1660, he oversaw the trial and execution of those who signed his father's death warrant (the "regicides").

5.Geoffrey Robertson recounts that history. The jury of the "regicides" first came back with a "not guilty verdict," but the judge told them to reconsider. They did. The jury then condemned the "regicides" to be hanged, drawn, and quartered (tortured).
books.google.com/books?id=qpLsB…

6. So when Franklin wrote "Every body cried out agst. this [trial] as unconstitutional," Franklin meant that English courts viewed the trial of a king as against the ENGLISH constitution.

7. But Franklin then argued that designating the trial of such a "first magistrate" as illegal led to huge problems. Why?

8. Franklin's speech continued: "What was the practice before this in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in wch. he was not only deprived of his life but of the opportunity of vindicating his character."

9. Franklin thought trials were better than assassinations (or revolutions) because he thought they were fairer to the accused. Thus he thought trials of chief executives for crimes should be provided for by the US Constitution.

10. Franklin concluded his speech thus:
"It wd. [would] be the best way therefore to provide in the [United States] Constitution for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused."

11. Franklin made these comments on July 20, 1787. You can read them here:
avalon.law.yale.edu/18th_century/d…

12. Once again, Trump's lawyers are trying to turn a president into a king.
That they pretended that Franklin meant that Presidents should not be tried for high crimes-- is somewhat shocking to this historian.

13. By leaving out the rest of this quote, Trump's lawyers seem to have been deliberately misleading the supreme court justices. And while one might suppose that Trump's lawyers know so little about English history --

14. that they did not know that Franklin must have been referring to the trial of Charles I . . . Surely they understood that the U.S. Constitution was not yet written in June 1787, and that Franklin must have been referring to the (unwritten) British Constitution.

15. It is a strange thing that under the British constitution, kings can still not be prosecuted. (It is probably less dangerous than it would be to allow such immunity in a president or even a prime minister, since they have less power than the latter).
theguardian.com/uk-news/2024/a…

16. But there is no doubt that Benjamin Franklin's position in the Constitutional Convention was that it was better to try a president for his criminal actions that to resort to the other historical alternative to a ruler who commits crimes: assassination.

17. Franklin would have been horrified to be thus represented as a proponent of monarchy. On the last day of the convention, Sept 17, 1787, “A lady asked Dr. Franklin Well Doctor what have we got a republic or a monarchy –
'A republic replied the Doctor if you can keep it.'”

18. Misrepresenting Franklin's own words before the highest court in the land, portraying our system as a monarchy, not as a republic, has the potential to transform it into that very monarchy that Franklin's listeners dreaded to discover in Sept 1787.
loc.gov/exhibits/creat…

19. The historian's amicus brief, to which Trump's lawyers were responding, is here. It retraces widespread agreement about holding president's accountable-- during the Constitutional Convention, ratifying conventions, and in legal treatises afterwards:
brennancenter.org/our-work/resea…

20. p.s. Just b/c it's cool: Here's the diary entry for September 18, 1787, for James McHenry, a delegate to the Constitutional Convention from Maryland: Note that he underlined, when he wrote it, the last part of "A republic replied the Doctor, if you can keep it."