NO ONE IS ABOVE THE LAW
Some laws we may agree with, some we may disagree with, but the idea of laws is to protect us and provide some sense of order. That idea may or may not be followed through on, but I, for one, am not in favor of anarchy.
Many politicians have invoked this idea by saying America is "a nation of laws". Some have referred to themselves as the "law and order candidate". Richard Nixon, for one example, referred to himself as such in response to the young people protesting the Vietnam War, and the perception (or reality) that the country was falling apart.
To some degree, with whatever language used, all presidential candidates present themselves as in favor of law and order. Joe Biden referred to America as a nation of laws. The latest candidate, however, to have self-identified as the law and order candidate is President-Elect Donald Trump.
He is a law and order candidate? Really?
America is a nation that follows the rule of law? Really?
Let me look at this briefly on a broader scale and then narrow it down, all of it relative. First, look at the slew of cases against police officers over several years getting either not indicted or not convicted. Other examples could be business executives and celebrities. There have been some cases where justice is served, but are all those absences of indictments and convictions a following of the rule of law?
Not following the rule of law is now being given a bigger stage, painted with a wider brush, its scope increased in ridiculous measure. I have two of the latest examples, both having Donald Trump at their center. I will start by going back to last summer. On July 1, 2024, the Subordinate Court (formerly known as the Supreme Court), in a 6-3 vote, ruled that presidents have broad immunity from prosecution. The supposed limiting is in the wording that the immunity is related to "core constitutional powers", more commonly referred to official presidential acts. If Trump does anything illegal, all he has to do is claim it as an official presidential act, and that's that.
In other words, the Subordinate Court has placed Donald Trump above the law.
Another Trump-centric ruling was the one handed down by Judge Juan Merchan, Justice of the New York State Supreme Court, on Friday. Following a last-ditch appeal by Trump's lawyers to the Subordinate Court that failed to block sentencing, Judge Merchan's sentence for Donald Trump was this: unconditional discharge.
A conditional discharge is when someone who is convicted is required to fulfill some requirements (e.g. paying fines, community service). Once fulfilled, the charge(s) are dismissed or the sentence is dropped. You can probably guess, then, that an unconditional discharge means there is no penalty to the one who has been convicted. That's what happened with Trump: no jail time (he was facing up to four years), no fines, and no probation. Nothing.
So, Trump carries the shame of being a convicted felon, but suffers no consequences.
Trump doesn't feel shame, but he's still planning on appealing the sentence, likely because he feels wronged rather than ashamed. Judge Merchan's reasoning included Trump's being re-elected to the presidency would mean any punishment would have interfered with the Subordinate Court's ruling. He stated in his ruling that the only option he had was an unconditional discharge "without encroaching on the highest office of the land". Granted, passing an actual sentence would be prime opportunity for a slew of legal wrangling. Nonetheless, Merchan's ruling is a legal affirmation of presidential immunity.
Are these examples proof that no one is above the law in this country? I know what my response to that question is. In light of that, here is what we have and will have:
We have someone who is above the law.
We have a state high court affirming that to be true.
We will have, in two weeks, our first felon president.
English politician James Harrington wrote in the seventeenth century about an "Empire of laws, not men" in explaining a key tenet of his political theory: the rule of law is achieved though the prioritizing of the common good over personal interests. This, he wrote is "according to ancient prudence". "Modern prudence", in contrast, is when "some man, or some few men, subject a city or a nation, and rule it according to his or their private interest...". Sound familiar?
Harrington's political views were influential in the establishment of this country. John Adams, our second president, was quoting Harrington in his writing Thoughts on Government when he defined a republic as a "government of laws, not of men".
A system of checks and balances was key to their beliefs. In this country, the three branches of government (executive, legislative, and judicial) were to assure no one or no single group had too much power. I doubt Adams would recognize this country if alive today. I suspect he and the other founders of this country would wonder what good were their efforts in the long run. They knew what they were establishing was tricky, but likely the word futile would cross their minds more than once in observing us now.
How's that modern prudence working out?
Terry
UPDATE (January 20) -- Now President Trump, on his first day in office, has issued a full pardon for almost the entirety of over 1,500 charged for offences committed on January 6, 2011. Over a dozen of those convicted had their sentences greatly reduced through commutations issued by Trump. Where is the rule of law in that?
