If you had to sum up more than 800 years of some of the most crucial aspects of our Anglo-American politico-legal history in less than eight seconds you might not do much better than this: starting with the Magna Carta in 1215, the law of the land for people like Trump has been that he must be tried by a jury of his peers.
Under the Magna Carta (the Great Charter), most of us would have enjoyed little, if any protection. When the Magna Carta was written it was in Latin by barons for barons. In England, the king controlled the judges. Naturally, judges often did the king’s bidding. So the Magna Carta protected barons by entitling them to a jury trial and requiring a jury consisting of a baron’s peers. (In America, our solution was simpler and (usually) more effective. We required judicial powers to be exercised by people in a distinct, separate branch from the people wielding executive (or legislative) powers.)
Fast forward some 500 years, across an ocean, and to the far side of a revolution and two great civil wars (the Revolutionary War and the Civil War), and law and politics are vastly different here and now from those of old England. With the Declaration of Independence, the people declared a self-evident truth (“all [citizens] are created equal”) to establish and emphasize a precise point: the people are sovereign, and we people will no longer tolerate the foolish, dangerous, abusive arrogance of so-called kings and nobles.
“We the People” subsequently wrote, ratified and repeatedly revised our Constitution for the purposes stated in the Preamble, including to “establish Justice” and “secure the Blessings of Liberty” for “ourselves.” We promptly outlawed any purported royalty or nobility. “No Title of Nobility” may “be granted by the United States.” “No State” may “grant any Title of Nobility.”
Even so, in an important respect, judges and high executive officials continue to enjoy the benefit of barons under the Magna Carta. When they violate our Constitution and abuse their official powers, they are entitled to a special trial by a jury of their political peers. A political trial by a jury of political peers consists of a decision to impeach by representatives in the House and a trial by senators.
Impeachment and trial may and must be used for the very important purposes emphasized in the Constitution: “The President, Vice President and all civil Officers of the United States, shall be removed from Office” for “Treason, Bribery, or other high Crimes and Misdemeanors.” Sadly, too many in Congress treat impeachment and trial as a political game instead of being deserving of the due process and lawful conclusion of a solemn adjudication required by the Constitution. Now, some politicians and pundits are going far further to try to convince us that criminal trials really are merely political trials, too. They clearly are not.
After a high executive officer or judge has left civilian office or been removed from office (after impeachment and conviction), then he can (and maybe should) be tried by his new peers, the people. People who wielded the power of government against citizens eventually must rejoin the citizenry, and they must be subject to the same criminal laws as the rest of us. Like the rest of us, they must face a jury of us, their peers.
This is a crucial aspect of our Constitution’s design. The most fundamental and passionately-held beliefs that motivated the people responsible for the American Revolution and our Constitution included these three: no taxation without representation, no one is above the law, and trials for crimes must be public and by a jury of our peers.
Those particular principles meant—to the people who fought and died for them during the American Revolution—that our representatives must bear the same legal burdens and they must be subject to the same (due) process of law—especially criminal law—as all the rest of us. This is not merely a matter of equity or fairness. It is a crucial safeguard in our Constitution (for our safety and our liberty).
Our representatives in Congress make laws. Our representatives on courts interpret laws. Our representatives in the executive branch enforce laws. All our representatives must (and do) know that (almost all) the laws they make, interpret and enforce against us also can be used against them. Our Constitution was consciously designed that way to make people in power less inclined to abuse their powers, including in making, interpreting or enforcing laws. These were among the most prominent and important points driving Americans toward and through revolution starting in the 1760’s and toward and through the Constitution and the Bill of Rights.
A jury of his peers is not merely another luxury to which Trump is entitled. It is a public necessity to which we, his peers, are entitled. Jurors and a judge conducting a trial that is open to the public perform a vital public duty and public service. The U.S. Supreme Court (SCOTUS) addressed this issue already. This is not a novel or unknown principle. For an interesting and insightful explanation provided 44 years ago, see Richmond Newspapers v. Virginia, 448 U.S. 555, 564-581 (1980) (opinion of Chief Justice Burger joined by Justices White and Stevens).
Of profound significance, in a criminal trial, the people directly exercise their sovereign power. The duty of the judge (obviously, also one of the people) is essentially to referee the proceedings and advise and instruct the jury on the law. Jurors, however, have the power and the duty to decide the facts and to decide whether to convict. Jurors, not SCOTUS justices, must decide whether Trump is guilty of criminal abuse of the powers that we the people entrusted to him, a public servant, to serve the public.
No number of SCOTUS justices have any power to override or revise the Constitution. Articles III and VI and Amendments V and X say exactly that repeatedly and emphatically. The SCOTUS justices also said the same (and swore to act accordingly in everything they do) when they took their oaths of office. Before and above all else, every federal judge swore (and promised) to “support and defend the Constitution” and “bear true faith and allegiance to the same,” not any politician or party.
In our Constitution, Article III and three amendments (Amendments V, VI and VII) require juries and public trials. According to “the supreme Law of the Land,” Trump must face a jury of his peers in a public trial. Instead, Trump has asked a handful of judges to pretend to “rule” that Trump and every subsequent president is above the law (not subject to the criminal laws that executive officials enforce against the rest of us, and not subject to the power of his peers on a jury). Such a “ruling” would smash dangerous gaps in our Constitution, the foundation of our nation.