In the Constitution, only the legislative branch is granted any sort of legal immunity; yet in 2024 it was the presidency that received a sweeping immunity from prosecution from the Supreme Court. Is presidential immunity supported by constitutional law, or was the Court’s decision a legal travesty? I answer this question through an extensive study of pamphlets and letters from prominent figures of the Founding era. I supplement these sources with secondary writings from contemporary scholars of constitutional law. Finally, I track the growth of the idea of presidential immunity from Jefferson’s attempt to avoid subpoena, to Lincoln’s suspension of habeas corpus, to the 1973 OLC memo which gave presidents reprieve from Justice Department prosecution, and ending with the broad presidential immunity granted by the Supreme Court in Trump v. U.S. (2024). I find the Founders gave members of Congress clear immunity from arrest due to their adherence to British common law, yet presidential immunity was not explicitly included due to the Founders ignoring the common law concept of “the king can do no wrong.”
