On Tuesday, in a case involving Donald Trump’s tax returns, the president’s lawyer, Jay Sekulow, appealed to the U.S. Supreme Court for ” temporary presidential immunity” for Trump, meaning he could not be investigated or prosecuted for anything while in office. Justice Elana Kagan’s response: “The president isn’t above the law.”
The problem with platitudes is that their poetry is so pleasant to the ear that they take on lives of their own and, repeated often enough, are soon assumed to be unassailably true.
As per Kagan, the bromide du jour is, “In America, no one is above the law, not even the president.”
It sounds resolute and noble, but it is tragically false. One need look no further than the Department of Justice policy that a sitting president cannot be indicted for a crime. During his 2016 campaign President Trump famously asserted that if he were to shoot someone his supporters would still not desert him. But it goes beyond this. His lawyers, arguing before a federal appeals court, confirmed that, if Trump were to shoot someone while in office, he still could not be indicted.
It’s important to note that there is no law preventing a sitting president from being indicted for a crime. Again, it’s a policy ( based on a 1973 memo drafted during the Watergate affair), but it has taken on mythic proportions and has been embraced by the president as if it were chiseled in stone. Why else would he be so bold in flirting with the law on a number of fronts? Some examples:
The president claims that he cannot be subpoenaed to testify before any investigative body. But it’s not just this president. No president in the history of the Republic has ever testified in open court. Again, consider the consequences if you or I were to reject a subpoena. This is a privilege reserved for the president, who is, therefore, above the law.
Consider how vigilant we are about conflicts of interest at lower levels of government. If the mayor of a town owned a trucking company, he or she could not advocate that the town sign a contract with that same company. The conflict of interest is clear. The president, however, is exempt from the federal conflict-of-interest statute. This has allowed Trump to pursue his private business interests while at the same time attempting to run the country. He retreated, under political pressure, from his drive to hold the last G7 summit at his private club in Miami, but he didn’t have to, because he is above the law.
When special counsel Robert Mueller was asked if Trump had obstructed justice during the investigation into collusion between the Trump campaign and Russia, Mueller made the point that the president was not exonerated from this charge. If you, or I, were suspected of obstructing justice, the law would play out until a verdict of innocent or guilty was rendered. But in the president’s case, no further action was taken or even recommended.
Which brings me back to the president’s quest for immunity from indictment while in office. Imagine some determined prosecutor endeavoring to do so, knowing that, at root, there is no law against it. The president has committed crime X, and then he is successfully indicted. It is by no means clear that the president cannot pardon himself. Because he is above the law.
Perhaps I am making a fuss about nothing. Perhaps Trump is as pure as the driven snow. Perhaps, as he said about his notorious phone call to the president of Ukraine, it was ” perfect.” My solitary point is that American presidents, as ably demonstrated by the current one, are clearly above the law, and the question is whether this is something we want to be honest about.
Robert Klose is a frequent contributor of essays to The Christian Science Monitor and a four-time winner of the Maine Press Association award for opinion writing.