A president above the law?

Trump’s claims of presidential immunity from prosecution are not based on the constitution or supported by case law.

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US President Donald Trump speaks to the media on the South Lawn of the White House in Washington, US, before his departure to New York, November 2, 2019 [Yuri Gripas/Reuters]

Trump believes he is above the law.

Is he? How can he make that claim? Will it stand?

One of the absolute fundamentals of American democracy, carved in stone above the entrance to the Supreme Court is “Equal justice under law.” One of the absolute fundamentals of the very idea of liberal democracy, inscribed in the UN’s Universal Declaration of Human Rights, is “All are equal before the law.”

At the moment, however, it appears that Trump’s claim is the official and prevailing legal opinion in the US. It is the opinion of the Department of Justice (DOJ) that the president is immune from criminal prosecution. That opinion is what drove Robert Mueller into the labyrinth of tortured reason and his report into incoherent knots. If the president could not be indicted, he would not have the opportunity to be tried and – possibly – refute the charges by being found not guilty, therefore, it would not be fair to say he committed crimes even if – especially if – he had committed crimes.

The DOJ’s position rests on two documents, the Moss Memo written in 2000, which is based on the Dixon Memo from 1973. This year, 46 years later, it turns out that the Dixon memo said a sitting president is immune from prosecution because that is what the then Attorney General, Elliot Richardson, wanted it to say. He wanted to be able to prosecute Vice President Agnew because the evidence against him was too messy and ugly to ignore – he was taking cash kickbacks from Maryland contractors while he was VP – but he needed the memo to say the president was immune, because if it did not then President Nixon would quash it. That is why Dixon threw that part in, even though it was not part of the question he was asked.

The legal argument for the president’s immunity from prosecution is that because the Constitution provides for impeachment, impeachment must come before any other criminal procedure. If impeachment fails, the criminal procedure would have to wait until he was no longer president. 

The practical argument is that the president has such unique and important tasks that he should not be interrupted by being tried for a crime.

The real argument, presented in the Dixon memo, is that, “The spectacle of an indicted president still trying to serve as chief executive boggles the imagination.”

It is a political argument. Attached to it is the fear that a multitude of politically ambitious members of the opposite party would launch frivolous assaults, while at the same time presuming that political and social considerations will always ensure that the president will act as a person of rectitude. 

The theory still stands. And an ever-larger edifice has been built upon it. 

All three arguments are flimsy. More than that, the logic and the grounds to reverse them are built into them.

The impeachment argument is refuted by current reality. A Republican majority exists in the Senate that will find Trump not guilty. No matter what he has done. No matter what the evidence. Since he cannot be removed from office – in reality – his immunity becomes absolute. 

Would it be devastating to interrupt the Great Leader in his business? The Supreme Court ruled that Bill Clinton could be deposed in a civil suit. One that led to an impeachment. Clinton continued to perform his duties in an exemplary fashion. The Republic thrived. The difference – in respect to this argument – is not a difference of kind, only of degree. When it comes to this president, we know that he spends very large amounts of time on his hair and makeup, watching TV, tweeting, raging and campaigning. What harm would it do to the nation if he was distracted from those things?

Finally, the Constitution has provisions for what to do if the president is incapacitated. It provides methods and prescribes who should take over. 

As to the “boggle” argument, does not the spectacle of president who has committed crimes but still sits as chief executive, and cannot even be indicted, boggle the mind?

What will knock this flimsy, illogical and destructive house of cards over?

If anything will, it is Trump, his lawyers, and supporters. By pushing the doctrine to the point of absurdity and then beyond. 

The Manhattan District Attorney, Cyrus R Vance Jr, has opened an investigation into Trump’s part in the Stormy Daniels payoffs and, presumably, far more. He subpoenaed Trump’s ever more notorious, but never revealed, tax returns. 

Trump sued to stop him.

The US District Judge, Victor Marrero, wrote that: “Bared to its core, the proposition the President advances … [is that] a constitutional domain exists … in which not only the President, but, derivatively, relatives and persons and business entities associated with him in potentially unlawful private activities, are in fact above the law.” That the president “enjoys absolute immunity from criminal process of any kind … investigations, grand jury proceedings and subpoenas, indictment, prosecution, arrest, trial, conviction, and incarceration. … any conduct, at any time, in any forum, whether federal or state, … alone or in concert with other individuals.” 

This forced the judge to take a serious look. “Because the arguments the President advances are so substantially grounded on the supposed constitutional doctrine the DOJ memos present, a close review of …[them] is called.” Once he looked, he found that “The case law does not support the President’s and the memos’ position … The case law does not support the absolute immunity argument.”

Trump appealed.

That pushed the argument even deeper into reducto ad absurdum, the now infamous exchange between Judge Denny Chin and Trump attorney William S Consovoy. The “5th Avenue example” in the exchange refers to the hypothetical of Trump shooting someone on a public street for private reasons, being seen to do it, and then heading off to shoot someone else.

Judge Chin: What’s your view on the 5th Avenue example. Local authorities couldn’t investigate, they couldn’t do anything about it? …

Consovoy: No.

Judge Chin: Nothing could be done. That is your position?

Consovoy: That is correct.

Meanwhile, Trump and his attorneys have even challenged impeachment. They have refused to answer subpoenas, to produce documents, and have ordered current and former staff not to testify. White House counsel Pat Cipollone’s letter to Speaker Pelosi said “President Trump and his Administration cannot participate in your … unconstitutional inquiry,” that it was “an unconstitutional effort to overturn the democratic process.” Since impeachment is written into the Constitution and the House followed the rules for it, this is clearly nonsense. It also undermines all the other presidential immunity arguments, since they rest on going down the impeachment path instead. 

Normally it is possible to imagine, even expect, that a Supreme Court with Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett “I like beer” Kavanaugh and John Roberts, would find for a Republican. But Trump’s arguments are so absurd that they will likely push at least one of that bunch to say so.

The Democrats have realised that Trump’s resistance is designed to drag things out. Force them to go to court. Then appeal or fight appeals. To wear themselves out. To exhaust the public. They have decided to simply treat refusals as signs of guilt.

The DOJ under Bill Barr is extremely unlikely to bring charges against Trump. Barr has already been cited as a co-conspirator and should recuse himself. But he won’t.

Local district attorneys and state attorney generals are bringing cases to court.

As Trump and his crew fight them, and try to fight impeachment, it is they who will expose how illogical and dangerous the idea of presidential immunity is. It is not like tweets. It is not like yelling at journalists in front of the presidential helicopter. Or ranting in Congress. In court, the arguments go on the record. They lay still, like corpses on an autopsy table, to be dissected. It is there that Trump’s excesses will force judges to say that presidential immunity is not based on the constitution, is not supported by case law, it is just the policy of one government agency, resting on flawed memos.

If not, the rule of law begins to die.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.