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On Presidential Immunity

Like thirst, like hunger, we ache with the need
To save ourselves, and our country from itself.

                                             – Richard Blanco

I have to put aside painting for a while to try to sort out – emotionally, intellectually, ethically – how to come to terms with what’s happening in and to this country right now, especially in regard to the slew, one might say toxic discharge, of recent Supreme Court decisions. Yes, many of the historians and commentators who decry the Trump v. United States decision as the negation of the American Revolution, i.e., establishing a legal king who can rule by fiat and divine right, are correct. It is that. It does cancel the fundamental tenet of democracy and the rule of law: that no person, even the president, is above the dictates of law. Our Revolution declared Law to be king.  And, the fact that this court decision was made by Trump-appointed justices while Trump is under numerous indictments for breaking essential laws concerning democracy and insurrection, makes oppressive the stink of corruption. Trump has long suggested that if he were re-elected he would take revenge on his rivals and detractors. Now, what is to stop him? “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.” Facing these grim prospects, Justice Sotomayer added, “With fear for our democracy, I dissent.”

A few days earlier, in the Loper Bright case, the court dramatically reduced the authority of regulatory agencies, like the FDA and the EPA, to do their jobs. Now the courts can second-guess agencies on their regulations – like the amount of pollutants corporations can dump into waterways, or the amount of greenhouse gas released into the air during manufacturing and travel, or the level of profit pharmaceutical giants can extract from medications. As bad as the levels of environmental and economic exploitation are now, they would be a whole lot worse if corporations could decide for themselves what acceptable levels are. Our only hope of combating climate catastrophe is the adoption of more stringent regulations on the release of greenhouse gases.

So, in both of these cases – and in numerous others – what we see are not responsible, wise judges deliberating about how to make our society more just, more fair, more healthy, less racist, more peaceful, more sustainable, more generous and kind. We see the opposite. We witness a coterie of connivers stitching inequality and injustice more firmly into the fabric of society. Beyond remedy. Many of us -including myself – are alarmed at the inexorable pace of climate change and the necessity of strict interventions, but these two decisions may make the hope of alleviation and mitigation irrelevant. 

Some of you, those who know the truth of our legal history, may point out – honestly and cynically – that presidents have rarely been held accountable for breaking domestic or international law. Americans Who Tell the Truth began as a protest against the George W, Bush administration’s lies creating the Iraq War. These were war crimes and crimes against humanity. No accountability. Those same people secretly used illegal torture. No accountability. Lyndon Johnson and Richard Nixon lied to escalate the Viet Nam War. No accountability.  Ronald Reagan lied about the Contra Wars in Central America. No accountability. George H. W. Bush committed war crimes in Iraq in the mid 1990s. No accountability. This is a superficial list. Millions of people suffered and died. And Barack Obama, when asked if George W. Bush should be prosecuted for war crimes, decided that “we” should choose to look ahead rather than back. In other words, prosecuting presidential crimes was politically inconvenient.

It’s important to acknowledge how pliable the concept of law is for the powerful.

President Truman appointed Supreme Court Justice Robert Jackson to be the U.S. Chief Prosecutor at the  Nuremberg Trials prosecuting the Nazis after World War II. 

Justice Jackson said this about his work: 

If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us. 

And in his opening statement before the International Military Tribunal, Jackson said:

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated. . . .

We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice. 

These words are incredibly important for what they tell us about the law, human nature, and the hypocrisies of power. Jackson was right about the necessity of prosecuting the Nazis. He was also right to suspect that the powerful, no matter how righteous they are in the condemnation of others, may use that power to ignore, to justify, and rationalize their own crimes.

So, one might conclude that the only change made by the Trump v. U.S. decision was to make explicit what has long been implicit  – except for the case of Nixon and Watergate – that presidents are, in practice, above the law anyway; the rule of law is merely a pretense. That would not be the right conclusion. Relieving Trump from his multiple indictments would flagrantly and ruthlessly stab Democracy in the back. Violently undermining democratic process and lying about its outcome may be the prerogative of this man, from which there may be no immediate recourse. But the failure of the U.S. to hold itself accountable for its imperialistic crimes may have set the stage for legalizing domestic crimes. Trump has been correct to say the system is rigged. What he did not say is that his power depends on it staying rigged. That’s what the Supreme Court has enabled, and that will be the platform of his presidency if he’s re-elected. We are, as Shakespeare said, Hoist with our own petard, i.e., blown up by our own bomb. 

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