POTATO POTAHTO, TOMATO TOMAHTO, IMMUNITY, IMPUNITY

 Let’s talk about “presidential immunity”. Does anyone else find that concept utterly at odds with democracy and the rule of law, or am I the only one? I really can’t believe that this is even being discussed, or that former President Donald Trump’s lawyers would seek to employ it in his defense, as if it were in any way valid and logical. Indeed, practically as his only defense.

Basically, what Trump’s attorneys—and Trump himself—are trying to say is that a president (or at least Trump, since clearly, up to now, there seem to be entirely different and lionizing rules for Trump than for anyone else in the United States of America) can do whatever the hell he pleases in office, and then, neither while in office nor afterward, can he be charged for it, no matter how blatantly illegal or illegitimate his deeds might be. I ask myself, how can anyone, be they legal experts or common folk, not see how un-American, un-democratic and untenable that concept is. It is simply licensing carte blanc criminality and despotism in an office that is already, arguably, the most powerful post on earth.

This is precisely what Americans (except Trump who is what might be termed a “dictator groupie”) criticize dictators all over the world for—the idea that a Vladimir Putin, a Kim Jong Un, a Xi Jinping can do whatever they want, including abducting and/or killing their opponents, with complete impunity, because they are despots, because they answer to no one, which is exactly what Trump infamously admires and envies about them.

Let’s be clear about what we’re dealing with here. Beyond a plethora of other criminal and civil indictments against Trump elsewhere, a federal grand jury has agreed with Special Counsel Jack Smith’s criminal charges against Trump and has indicted him.  In Smith’s indictment, filed in the District of Columbia, Trump is charged with conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding. All of these charges stem from Trump’s January 6, 2021 attempt to illegally alter the outcome of the 2020 election in which he lost, and to lead an insurrection aimed at overthrowing the election results (hence the government). In other words, if we’re not beating around the bush, the first attempted coup d’état in US history.

Smith has also brought a federal indictment in Florida against Trump for the retention and mishandling of myriad classified documents, some with the highest of top secret classifications. Items Trump considered his property, simply because he had once been president. Clearly, they were actually property of the US government and should have been under the care of the US intelligence community, not stowed in boxes in Trump’s spare bathroom, or on the stage in the activities room at Trump’s Mar-a-Lago seaside resort.   

Now here’s the thing, the evidence against Trump in the first three indictments is so overwhelming, that his attorneys appear reluctant to seek a not-guilty defense. Instead, they have introduced a bizarre defense strategy that basically says that, in his former position as president, Trump’s power was essentially absolute. Why? Because, they argue, the president of the United States is “immune” from prosecution for any and all laws that he may violate while he is in office.

Trump’s lawyers have apparently chosen this tack because there is arguably no precedent for it. That’s because just about everything to do with Trump’s presidency has led the United States into new, impossibly murky, and uncharted waters. His presidency is unique in US history because of his contempt for representative democracy, his admiration for authoritarianism and his desire to do away with every tradition that has maintained the Nation on the path set by its framers for the past two and a half centuries.

Truth be told, Donald Trump never saw the office of the presidency as what it was meant to be, the elected office of the head of the executive branch of government, over which there are supposed to be checks and balances provided by the other two branches. He sought the office not to serve his country, but to serve himself, and for the egotistical goal of becoming the most powerful man on earth. Once he achieved that goal, his fevered delusions led him to believe that it would be his forever. Losing an election by a wide margin wasn’t a contingency he ever had in mind, surrounded, as he has always been, by fawning sycophants, who were loath to tell him that he was delusional.

 Now, we are seeing an attempt to institutionalize Trump’s delusions as legal precedents. According to Trump’s attorneys, the only way the former president can be tried for crimes he committed in office is if he is first impeached and convicted by Congress. This flies in the face of Senate Minority Leader Mitch McConnell’s statement when Congress failed to impeach Trump following the January Sixth Insurrection. McConnell himself didn’t vote to convict Trump in impeachment proceedings, but in a speech following the Senate vote, he said that Trump was “practically and morally responsible” for the January 6, 2021, uprising. The veteran lawmaker also made it clear that, while Congress had failed to provide a conviction for the crimes committed by the former president, Trump could and should have charges filed against him and be tried in a regular court of law.

Special Prosecutor Jack Smith, meanwhile, has brought up the case of Richard Nixon, who resigned as president in 1974 to avoid impeachment for high crimes and misdemeanors committed while he was in office. Following his resignation, he was swiftly issued a blanket pardon for any crimes committed in office by his replacement, Gerald Ford. Smith argues that, first, even though Nixon was neither impeached nor convicted by Congress, he was indeed liable for his crimes in the federal courts system. And second, if Nixon had had “presidential immunity,” says Smith, there would have been no need for Ford to pardon him.

In Trump’s second impeachment trial, the idea that he was liable for his crimes was made by his very own attorney, Bruce Castor, who was quoted as saying, “The text of the Constitution…makes very clear that a former president is subject to criminal sanction after his presidency for any illegal acts he commits.”

But one of Trump’s current attorneys is presenting an argument that can only be seen as an ardent call for authoritarian rule. Basically, that no matter what a president does in office, he or she is immune from prosecution, except in as much as Congress sees fit to call him or her out in impeachment proceedings. Were that sort of argument to be accepted by the Supreme Court, for instance, the rule of law would no longer apply to chief executives—which is the same as saying the rule of law would no longer exist, because a basic tenet of the law is that no one is above it.

This is the case, basically, because impeachments are not, in the least, impartial legal procedures, as evidenced by the unprecedented two impeachment proceedings that Trump underwent. They are political processes with political biases.  In both of Trump’s cases, but particularly in the second, which was concerned with the January Sixth Insurrection, despite the ample and undeniable evidence presented against him, Trump was acquitted. Not because he wasn’t guilty of the misdeeds of which he was accused, but rather, because he possessed a strong enough presence of votes in Congress to provide him with a get out of jail free card.

According to Trump attorney, D. John Sauer, a president can do virtually anything that crosses his mind. Sauer told US District Appeals Court Judge Florence Pan, in arguments presented to her court, that unless a president were impeached and convicted by Congress, the law didn’t apply to any actions he took.

Testing Sauer’s theory, Judge Pan asked, in Sauer’s opinion, "Could a president order SEAL Team Six to assassinate a political rival?"

Sauer cagily responded, "That's an official act: an order to SEAL Team Six.” In that case, Sauer said, the president could not be charged with a crime except if Congress impeached and convicted him or her.

Judge Pan insisted, "But if he weren't (impeached and convicted), there would be no criminal prosecution, no criminal liability for that?"

Sauer reiterated that Congress would have to take action before any indictment of a president or former president could take place.

“So your answer is no,” the judge said.

Could the DC Court of Appeals ever rule in favor of such an argument? It seems unlikely. Could the US Supreme Court, should it eventually decide to give Trump’s defense a hearing? One is tempted to laugh and say, “Of course not. Don’t be ridiculous” But considering the current composition of the Court, which has a conservative majority, including three justices hand-picked by the former Trump administration, can we be sure of that? Especially considering the Court’s having overturned the fifty-year-old precedent set by Roe v Wade, its upholding of state laws that clearly infringe on women’s reproductive rights, and its de-authorization of the Environmental Protection Agency in having sweeping control over business practices that negatively affect the environment, among other controversial actions. Nor can one of the senior justices on the Court, Clarence Thomas, be trusted not to support an undemocratic ruling, as long as it protects the interests of his friends on the far-right, including Trump.

The argument for immunity is, then, an argument for impunity. It would provide the president with pretty much absolute powers in detriment to the other two branches of government. It would turn the president into a legally established autocrat untouchable by the law, no matter how heinous his or her actions might be. Unless Congress were willing to act—and today’s divisive climate is nothing like that of 1974, when it was President Nixon’s own party that told him he must resign or face impeachment and conviction—a president’s crimes, from bribery, security breaches and treasonous relationships with foreign powers, to torture, kidnapping, rape, human trafficking and murder, would be above prosecution.

If a president has blanket immunity from prosecution for anything he or she does, then, they cease to be presidents and become tyrants. Respect for the universal nature of the rule of law is all that stands between democracy and tyranny.