Is the King the Law, or is the Law the King?

MAY 02, 2024

Thomas Paine, who offered that question as our nation was forming, was sure he knew. He said that we weren't going to be like other countries where the leader had all the power. He wanted the law to have all the power, not a man.

We collectively believed that for hundreds of years. Now, we're not so sure, thanks to the Supreme Court. First, they decided to hear the case Donald Trump's attorneys were making about how the president has to have absolute immunity—a subject that had not come up during the other 45 presidencies. Then they gave his lawyer lots of room to roam, allowing him to argue that a president has to be able to murder his political rivals if he, in his sole judgement, deems it necessary.

If nothing else—and believe me, there could be plenty else, including more shadow boxing, more dodging the specific question of Trump and immunity from prosecution for his private act of trying to overturn the election of 2020, but if nothing else, the nation's highest court has compounded the unnecessary delay in deciding whether anyone is above the law, and has made it just about a certainty that there will be no trial before the election.

Dave Pell, tongue only partially in cheek, suggests that if the Trump argument prevails, Biden should arrest and jail the 6 conservative justices, and while he's at it, he could arrest and jail Trump, or simply have him killed. Trump's lawyer suggested to the High Court that political assassination would be within the purview of the president.

Recall that the DC Circuit Court rejected the Trump blanket immunity question out of hand, saying simply that no one, not even the president, is above the law. That the Supreme Court decided to take up the issue is the seed of this delay, and one can only think that was their intent.

If blanket immunity for the president is so crucial, why has the issue never come up before? The 45 other presidents never argued they needed it. Not in 235 years had the question even arisen before Trump forced the issue through his mendacity.

No matter how they rule, the ex-president has gotten what he wanted: delay. Unless the Supremes surprise everyone, they'll issue a partial ruling and likely send it back down to the appellate court, ensuring months more of delays and appeals. I assume the court will split the baby, and offer a ruling that says there's a difference in culpability between public and private acts. One would think that turns on the idea that an office holder may be immune versus an office seeker who is not. I don't think they'll try to distinguish private acts from public acts, instead, sending that bag of snakes back to the lower court.

President Biden was on the Howard Stern Show the other day. In case you're not current, Howard, once the bad boy Shock Jock, has matured into a national treasure—the best interviewer this side of Terry Gross. It is essential listening because, without media filters, we hear a cogent, stable world leader explain himself in down-to-earth terms. His decency shines through nearly every answer. I got a kick out of the Facebook detractors when SiriusXM posted notice of the premium interview (they should offer it for free). All kinds of awful comments from the Peanut Gallery. It was clear that they had not heard the interview. Contempt prior to investigation always reduces facts to emotional outbursts. It's easier to prejudge than it is to listen with an open mind and an open heart.

I was frankly surprised that neither Stern nor Biden knew the answer to their own question about how we have come to be so divided. It's happened because media has fragmented to the degree that none of us has to read, hear, or watch anything we don't select. Choosing our own news has made us comfortably ill-informed in our little media silos. As Thomas Jefferson wrote, an informed electorate is crucial to a functioning democracy. The Tucker Carlsons, Alex Joneses, and Sean Hannitys of the world have incredibly large and penetrative platforms from which they spew their self-serving bile. Despite their bluster to the contrary, they care not a fig for the country. They just crave audience and riches. To paraphrase John Bright, these are self-made men who worship their creators.

It will be fun/tragic to watch the conservative majority on the court twist themselves into pretzels honoring their vaunted "constitutional originalism" while simultaneously ignoring the fact that there's nothing in the Constitution about presidential immunity.

The court won't rule until June.

Our ex-president says he deserves immunity, but what he's displaying is impunity.