Former President Trump is not immune from prosecution in the 2020 federal election case, a federal appeals court ruled Tuesday.
The U.S. Court of Appeals - D.C. Circuit considered Trump’s claim of presidential immunity from prosecution for his actions in office, including his alleged role in trying to overturn his 2020 election loss, ultimately saying it was "unpersuaded by his argument" and ruled a case against him can proceed.
- Fox News, 6th Feb 2024
Good.
I think that the idea that the actions of a President of the United States are immune from prosecution or that the President somehow enjoys immunity from prosecution from what they have done while they were in the White House, is quite frankly absurd.
Fox News is correct to point out that the question of whether or not former presidents can be prosecuted after they have left office remains untested at law, but not only because the courts haven't had to test this before and also they morally shouldn't have to. I note that Fox News remains silent on that issue. If you have a President who has done something so awful that they demand immunity from prosecution, then this pretty much tacitly admits that they are an awful person who should never be allowed to step back into the office. Of course we have been here before. Warren G Harding immediately after the Teapot Dome Scandal, avoided prosecution by helpfully dying. Richard M Nixon immediately after the Watergate Scandal, avoided prosecution by being awarded a Presidential Pardon by Gerald Ford; because Nixon knew that he was as guilty as the day is long but didn't want the scandal to drag through the courts for years. Donald J Trump in his mind, needs to demand immunity from prosecution because unlike Harding or Nixon, neither dying or admitting that he was guilty is desirable to him.
I also find the statement put out the 2024 Trump Presidential Campaign spokesperson, as spurious as the original assertion that a former President should enjoy immunity from prosecution for what they have done while in office:
"If immunity is not granted to a President, every future President who leaves office will be immediately indicted by the opposing party. Without complete immunity, a President of the United States would not be able to properly function!
Deranged Jack Smith’s prosecution of President Trump for his Presidential, official acts is unconstitutional under the doctrine of Presidential Immunity and the Separation of Powers. Prosecuting a President for official acts violates the Constitution and threatens the bedrock of our Republic. President Trump respectfully disagrees with the DC Circuit’s decision and will appeal it in order to safeguard the Presidency and the Constitution."
- Steven Cheung, 2024 Trump Campaign spokesperson, 6th Feb 2024.
There are multiple things wrong with this statement. That first sentence is actually an admission that politics in the United States is so toxic, that immediate indictment is seen as a viable option. The second problem here is that that "the doctrine of Presidential Immunity" is not actually an established thing and merely stating that it is, does not make it so. The third problem is that the courts' prosecution of someone for what they have done, is an explicit exercise of the courts' function and purpose; and therefore is an active demonstration of the Separation of Powers. The fourth problem is that Mr Cheung thinks that he can tie a magical ribbon of "official acts" around what a President does and this somehow makes them untouchable. What rot! To that assertion, what exactly is "the bedrock of our Republic" if this is true?
Furthermore, I find the tone and judgment released by the United States District Court for DC to be very very measured and understated:
We have balanced former President Trump’s asserted interests in executive immunity against the vital public interests that favor allowing this prosecution to proceed. We conclude that “concerns of public policy, especially as illuminated by our history and the structure of our government” compel the rejection of his claim of immunity in this case. See Fitzgerald, 457 U.S. at 747–48. We also have considered his contention that he is entitled to categorical immunity from criminal liability for any assertedly “official” action that he took as President — a contention that is unsupported by precedent, history or the text and structure of the Constitution. Finally, we are unpersuaded by his argument that this prosecution is barred by “double jeopardy principles.” Accordingly, the order of the district court is AFFIRMED
- United States v Donald J Trump, United States District Court for the District of Columbia, 6th Feb 2024 (No. 23-3228)
Let us consider that precedent and history of the text, or rather, what went on before it ever existed. Remember, the United States of America was the first nation to actually lay out the terms and conditions of the formation of the nation, and the replaceable rule set for making rules, by means of Constitution. I have no doubt that this was done due to reasons of mass suspiciousness amongst the various several states, and that the form of a written Constitution was used because that was the instrument which incorporated companies at law. It was business people who agitated for the war of Independence and they would have been very familiar with this form. From inception, the United States has been a buzzing nest of wasps which threatens to kill itself at the slightest provocation.
The second President of the United States, John Adams, in an effort to distance himself of the cult of personality which had surrounded his predecessor George Washington, famously stated that the United States was "a nation of laws". Part of the problem that Adam faced was that the Constitution itself, in both an effort to tear down the parliamentary system of government which was in Westminster, and partly because Alexander Hamilton wanted to make Washington a king in everything but name, made the office of the President absurdly powerful. Even so, the United States in the process of independence, still inherited that great corpus of existing case law from England and the United Kingdom; and there already was a massively massive case which had been tested and tried.
At the end of the English Civil War, Oliver Cromwell appointed the High Court at Westminster Hall to indict, charge, try and test Charles I on charges of tyranny and treason. Charles I was brought to trial on 20th January 1649, and the case caused so much controversy that there had to be a temporary wooden partition to keep the baying public out. Metal railings topped with sharpened spikes were installed and armed guards with pistols and swords stationed on the doors. Just like Mr Trump, the King challenged the court's authority and its right to try him and even though he appeared four times, the legal exchanges mostly followed the same form; with the King asserting that he was immune from prospection and even that the taking of a King to trial was illegitimate.
What makes R v Charles (1649) interesting is that the King who was on trial actually owned both the parliament and the court at law. What also makes R v Charles (1649) interesting is that the King quite rightly asserted that he had the right to trial by a properly constituted court acting on the basis of established law. The judges of the court also quite rightly had the right to call the King to account, even though they asserted that he was a tyrant who shed the blood of his own people in the Civil War. The fact both sides both wanted a trial by a properly constituted court acting on the basis of established law, is arguably one of the central and most crucial principles by which the law operates.
R v Charles (1649) quite rightly proved that R (that is The Crown) and Charles, were seperate people at law. Not only is the King not the Crown but the King is capable of being tried and tested. The King as individual, acts as temporary agent for The Crown which is corporation sole. The Crown actually owns itself. The Crown is an indivisible person, which is legally separate and distinct from the King.
Admittedly, the court would ultimately find Charles I guilty of tyranny and treason, and the High Court proclaimed a death sentence 27th January 1649; with the axe falling on 31st January 1649. There may have been zero doubt about the outcome of the case beforehand but even the trial of a King still demonstrates that not even a King is immune from prosecution from what they have done while they were on the throne. Charles I was found guilty; he could be brought to trial; he was not immune from prosecution.
Had Trump been successful in United States v Donald J Trump (2024), then it would have been established that the office of a President is more than a King. If there is anything which "threatens the bedrock of our Republic" then surely that would be it. Elevating the office of the President to more than a King even makes a mockery of the imagined fantasy of the Declaration of Independence. No, seriously, read through that and you will find that practically everything laid against King George III was simply untrue. Actually, if Trump had been successful in United States v Donald J Trump (2024) then does that mean that the Declaration of Independence itself is invalid because you can not lay charges on a King?
Had this been me sitting on the court, I would have been far more blunt and named Mr Trump as a knave, a bounder and a cad, a liar, a cheat, and a fool. Of course a former President is not above the law. Of course a former President is not entitled to and should not enjoy immunity from prosecution from what they have done while they were in the White House. The assertion that a former President is entitled to and should enjoy immunity from prosecution for the period that they were in office, is stupid.
Aside:
There's also an problem of internal logic with this. Trump can not simultaneously claim that the actions of a President are immune from the law while at the exact same time claim that what Biden is doing to him is illegal. If we accept the lie that Biden has done anything to Trump (the courts and the DoJ are not actually Biden), then Trump is essentially arguing that Biden's actions are above the law anyway. This is so much of a layered onion of nonsense and jacknuttery that it defies any kind of sensible analysis. It is much better just to put the onion back on the shelf and let it rot.
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