Today we will consider the implications of Trump v. United States for the overall legal accountability of the executive. At the outset we should acknowledge that the future effect of this decision, as it will be interpreted and applied by the courts and the executive branch, cannot be predicted with certainty. Indeed, the decision itself comes with the caveat that it is too early “to definitively and comprehensively determine the President’s scope of immunity from criminal prosecution.” Trump, 603 U.S. at __, slip op. at 15. Still, we can identify sufficiently dire consequences that are certain, likely, or plausible to require taking the matter with the utmost seriousness.
We might begin with the question whether Trump places the president “above the law.” The Court indignantly rejects this accusation:
Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.
Trump, 603 U.S. at __, slip op. at 40. Justice Thomas puts the point more succinctly, explaining “there has been much discussion about ensuring that a President ‘is not above the law’ . . . [but] the President’s immunity for his official acts is the law.” 603 U.S. at __, slip op. at 8 (Thomas, J., concurring) (emphasis in original).
These responses miss the point. In monarchies it may be the law that the king “can do no wrong.” But that is precisely what it means to say that the king is above the law. Similarly, if the majority’s reading of the Constitution means, as Professor Vermeule puts it, that the president “can do no legal wrong,” then it has effectively placed the president above the law, whether one agrees with its reading or not.
Continue reading “Immunity, Impeachment and Juristocracy (Part V: Above the Law)”