John Minchillo / AP, file
Trump supporters participate in a rally in Washington, Jan. 6, 2021, that some blame for fueling the attack on the U.S. Capitol. The fate of former President Donald Trump’s attempt to return to the White House is in the U.S. Supreme Court’s hands. On Thursday, the justices will hear arguments in Trump’s appeal of a Colorado Supreme Court ruling that he is not eligible to run again for president because he violated a provision in the 14th Amendment preventing those who “engaged in insurrection” from holding office.
Thursday, Feb. 8, 2024 | 2 a.m.
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This week, a federal appeals court affirmed what most Americans should already know: No one, not even the president of the United States, is above the law.
In a 57-page unanimous opinion, a three-judge panel of the Washington, D.C. Circuit Court of Appeals wrote that, “We cannot accept former President (Donald) Trump’s claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. ... Nor can we sanction his apparent contention that the executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.”
During oral arguments in January, Trump’s attorneys repeatedly argued that because the disgraced former president was not removed from office via the impeachment process, he enjoyed absolute and total immunity from civil and criminal liability for any actions undertaken during his time in the White House.
On his Truth Social platform, Trump even went so far as to argue that, “Even events that ‘cross the line’ must fall under total immunity.” He even compared himself to a bad cop and suggested that sometimes criminal policing practices are just fine. Put bluntly, he confessed.
His attorney, D. John Sauer, echoed that claim in court by arguing that even if a president ordered Navy SEALs to assassinate a political rival, the person in the oval office would be immune from prosecution.
While there is an argument one might make that sitting presidents should not be subject to the threat of some forms of prosecution while they are in office, that interest ends the moment they cease to be president.
Under Trump’s logic, the immunity presidents enjoy while in office would extend indefinitely, giving a free pass to occupants of the Oval Office who want to engage in all manner of illegal and unconstitutional conduct. It’s an absurd argument that should be rejected outright.
After all, what is the point of having a Constitution that limits and defines the powers of the presidency if the person occupying the office of the president can simply ignore it without consequence?
Trump’s attorneys claim that removal from office via impeachment removes the shield of immunity, which creates accountability for criminal conduct in the Oval Office. But impeachment is a purely political process — not a legal one.
Trump’s argument might hold water in a fantastical era in which members of Congress could be trusted to act in the best interests of the country rather than in their own self-interest or the interests of their political party, but that is an era that the United States, or any other country for that matter, has never experienced. In the simplest terms, self-interested politicians should not be playing the role of gatekeeper for the criminal justice system.
Trump’s position is even more transparently wrong in this respect: A president might commit a heinous crime and then, facing impeachment and conviction, resign from office before the proceedings are completed to avoid criminal liability. If such a scoundrel politician convinced enough members of his or her party that “national healing” should prevent impeachment and conviction, a criminal ex-president could walk free. And given the high bar for a conviction in the Senate, a tiny group of senators could thwart the entire criminal justice system.
As the court noted in its ruling, “The 43 senators who voted to acquit him (in Trump’s second impeachment trial) relied on a variety of concerns, many of which had nothing to do with whether he committed the charged offense,” the judges wrote.
The president is supposed to be a thoughtful and courageous leader who faithfully executes and enforces laws in service to the American people. The president pledges an oath to the Constitution.
While most presidents have faced difficult decisions about actions that skirt the law, they have largely done so in good faith, acting in their official capacity on behalf of the American people in a manner that is transparent and visible. As such, they have mostly avoided criminal prosecution or even public condemnation.
A person who is incapable of fulfilling their oath and obligations without acting in secrecy and running far afoul of the law in pursuit of their own personal interests has no business being an intern in the White House, let alone the president.
Republicans used to understand this. As president, Gerald Ford pardoned Richard Nixon specifically to prevent his predecessor from criminal prosecution that was certainly coming from a Department of Justice in his Republican administration.
The same held true in 2021 after the insurrection and Trump’s second impeachment. Sen. Mitch McConnell, R-Ky., rose to the floor of the Senate and said that he was voting against the conviction of Trump specifically because the criminal justice system would hold him accountable. Other senators said the same.
“It would be a striking paradox if the president, who alone is vested with the constitutional duty to ‘take care that the laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity,” the appeals court wrote Tuesday.
While the highly politicized (and arguably corrupt) Supreme Court may intervene and provide Trump with a get-out-of-jail free card, the decision by the D.C. Circuit affirms that federal and state prosecutors are justified in believing that Trump’s efforts to overthrow the results of the 2020 presidential elections were outside of his responsibilities as president and may have run far afoul of the law.
Their ruling sets a clear precedent that is in line with the Constitution, American legal precedent and common sense.
With an overwhelming majority of Americans wanting our judicial system to weigh in on the substance of whether Trump’s contributions to the Jan. 6, 2021, insurrection constitute criminal acts, we believe the Supreme Court should refuse to hear the case — silently affirming that presidents are not above the law and do not have the powers of a king.
