The President is Above the Law

Donald Trump has been placed above the law by the US Supreme Court. AI-generated image.

For as long as I can remember, conservative politicians and legal scholars have protested activism on the United States Supreme Court. The most obvious protest of this type has been the 50 + years that anti-abortionists have argued against Roe v Wade because there is no constitutional right to an abortion.

As case after case was decided in favor of Roe, conservatives demanded “narrow” or “limited” interpretation of the United States Constitution, arguing that the framers never mentioned abortion rights or any federal right to an abortion. Indeed, the premise of the Dobbs decision overturning Roe followed that reasoning; the high court sent the issue of abortion rights to the individual states.

We’ve had nothing but chaos on this issue since.

Trump v. The United States: The President is Above the Law

Fast forward two + years. Yesterday, this same Supreme Court majority did a complete one-eighty, deciding that Donald Trump has broad immunity for illegal actions alleged in the various cases pending before state and federal judges in Washington DC, New York, Georgia, and Florida. So long as the former president was engaged in “official acts” at the time of his illegal conduct, he is immune from prosecution, the Court decreed.

You may believe that this conclusion is reasonable, but there is no constitutional authority for it. In fact, this might be the most extreme constitutional overreach in American history. We don’t have an activist court; we are saddled with a 6-3 extremist court. Furthermore, the decision, while obviously written in fealty to Trump, is not limited to Trump. It applies to all future presidents.

Consider the Nixon tapes case in 1974. The Supreme Court, in just a few days (not 67), determined that President Nixon had to turn over recordings he made during the Watergate scandal, tapes that tended to prove his illegal conduct. The ruling hastened the end of his presidency. Had the Trump precedent existed during Nixon's time, the first criminal president might have argued that his illegal actions during the 1972 election were committed in his official capacity as president.

In 2012, Republicans were outraged by President Barak Obama’s “kill list” of al Qaeda terrorists. Obama decided to go after the terrorists with targeted drone strikes, resulting in the killing of innocents, including a 16-year-old American boy, and Republicans wanted to hold him accountable.

The controversy eventually died down. Under the Trump ruling, there would have been no controversy at all. Obama would have enjoyed official acts immunity.

Today’s decision opens a potential Pandora’s Box of presidential lawlessness, especially if Trump is re-elected. However, Trump and the Supreme Court Six might have done a huge favor to those who view Donald Trump and the Supreme Court majority to be an existential threat to our democracy.

President Biden is 81 years old. Many people in his own party have called for him to step down. After this Supreme Court decision, Biden could legally choose to go out with a grand gesture. A few days ago, he made these remarks at a campaign reception in East Hampton, New York:

“Donald Trump is a genuine threat to this nation.  That is not hyperbole.  He’s a threat to our freedom. He’s a threat to our democracy. He is literally a threat to the America that we stand for.” 

If Joe truly believes, following Trump v The United States, that Trump and the Supreme Court Six are a clear and present danger to America, nothing prevents him, in his official capacity as president, from taking out Trump and/or the Supreme Court majority, Obama style. Think that’s crazy? Read this crazier opinion!

Here’s what Justice Sonia Sotomayor said in her dissent to the majority opinion:   

"Let the president violate the law, let him exploit the trappings of office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority's message today . . . the Constitution does not shield a former president from answering for criminal and treasonous acts."

So, my fellow citizens, should our now totally immune president take one for the team? Farfetched, you say?  On the contrary, this is now the state of our democracy.

Please check out Mark Bello’s latest book, "The Anti-Semite Next Door," an exploration of antisemitism in the context of today's political environment.

It's the latest in Bello's ripped-from-the-headlines legal thrillers, all available online at Amazon and other major online booksellers. He has quite the hero in Attorney Zachary Blake, who fights for justice on all fronts. His previous books are Betrayal of Faith, Betrayal of Justice, Betrayal in Blue, Betrayal in Black, Betrayal High, Supreme Betrayal, Betrayal at the Border, You Have the Right to Remain Silent, and The Final Steps – A Harbor Springs Cozy Legal Mystery. He’s also written a wonderful children’s book about bullying, “Happy Jack, Sad Jack,” and he's just released "Love Hate Law," a new legal romance novel. For more info, just check markmbello.com.