Friday, May 31, 2019

Is A President Above the Law, or only beneath Contempt?

Some people in the US keep telling us that "no one is above the law, even the president." But then the in next sentence they tell us that (at least according to DOJ policy) the president cannot be indicted of a crime. Every time I hear these two claims side by side my brain explodes into a giant WTF?

Not being subject to a criminal indictment is the very definition of being above the law. There is no more "above the law" than being unindictable. The president, it seems to me is the best available example we have of being above the law.

Ok, so the counter argument would be that the Congress can hold the president accountable. The House can "indict" (referred to as impeachment). And the Senate can (in theory, though it's never been done) come down with a verdict of guilty, and (again in theory) remove him from office. But I think that one has to make a serious stretch to say that such a process indicates that someone is legally accountable. After all, the only punishment that the Senate is legally sanctioned to impose is to fire the president from his job. If the only punishment that can be imposed for a crime is to change a person's employment status, I don't think that this can be said to be legal accountability.

"But wait!" someone might say. After the president is removed from office he can be indicted for a crime. Well, that statement is itself an admission that the president is above the law, because the person you are now talking about indicted for a crime is NOT the president!

"Oh, but that's just a technicality," you might say. The president might be technically above the law, but the individual that is in office can eventually (if all the stars align and people can put partisanship aside) be subject to the law. The problems with this position are numerous. First of all, a very unusual (and unlikely) set of circumstances would have to prevail even for the individual in the oval office to be held legally accountable even to a minimum degree. Secondly, and more importantly, if a president were ever removed from office (and remember that this has never happened), the Vice President (who is supposed to be the president's closest ally) can simply pardon him. And, of course, Nixon (who was not technically removed from office but was only pressured to leave) was pardoned directly by Ford so he, as an individual could not be legal held to account.

I think it is pretty clear that, regardless of what Nancy Pelosi tells us, the president is, in fact, above the law. Of course, the executives in many countries are de facto above the law. Prime Minster Harper was clearly guilty of two counts of bribery (and we have clear physical evidence of these crimes in both cases), but he was never indicted for either. The fact is that the political establishment of most countries will go to great lengths to protect both the high placed individuals of their system as well as the office of the executive itself from any real legal accountability. But as far as I know, the US president is the only national executive in "genuine" democratic states who is not only de facto but de jure above the law. If  I were American I would definitely want to look into this.

1 comment:

Owen Gray said...

And that, precisely, is why the country to our south is in such a mess, Kirby.