The United States Supreme Court’s ruling on presidential immunity has scared the bejesus out of a lot of people on both sides of the aisle because it grants Presidents immunity from prosecution for official acts but leaves the President liable for his unofficial acts. The ruling puts the first determination of what’s official and what is not into the hands of judges hearing cases accusing former President Trump of making illegal efforts to change the outcome of the 2020 election and of taking classified documents with him when he left office—among other alleged sins. Any decisions by the judges can be appealed to the Supreme Court, further delaying any final disposition of the cases.
There are some things we haven’t heard discussed much that might backfire on Trump.
Some think the ruling means that this entire issue will dog Trump’s campaign for weeks. The public discussion of what he did or didn’t do could continue, if not increase, the uncertainty about whether his party and his voters will elect a President who also is a jailbird or, under a reasonable person’s concept of proper behavior, should be one.
Presidential liability will be awfully hard to describe but right off, the amendment should provide that no President can pardon himself for any crimes, official or unofficial.
It should begin with this concept:
The President of the United States, constitutionally, must be born in this country or an area that is considered part of the United States (overseas military bases, for example). The President, therefore is, first of all, a citizen of a country often described as “a country of laws, not of kings.” To suggest that a citizen elevated by fellow citizens to the most important office in the land has been given powers by those citizens that go beyond the law governing all citizens except for himself or herself is absurd.
Period.
We are wondering if the nation’s top legal scholars are starting to coalesce into a working group that will draft an amendment clearly stating that a President can be held criminally liable, even for official acts. The concern that a president could legally order the assassination of a rival, while seeming extreme, is a real concern, given Trump’s boasting.
But what about a President allowing water boarding? Dropping atomic bombs on cities? Freeing slaves in rebelling states? Ordering Japanese-Americans into concentration camps without due process? Closing banks in bad economic times? Sending federal troops to cities?
Think back to historic presidential actions—-the evacuation of Native Americans from their homelands in the east and forcing them to walk to hostile land in future Oklahoma.
Buying the entire Louisiana Territory and financing it with money borrowed from a hostile country (England) without authorization from Congress.
Congressman Joe Morelle of New Jersey, the ranking Democrat on the House Administration Committee, announced the day before Independence Day that he will introduce a proposed 28th Amendment “to reverse the Supreme Court’s catastrophic decision and ensure no president is above the law. This amendment will do what they failed to do—prioritize our democracy,” He continued in a statement from his office, “The Supreme Court decision will cause a seismic shift in the powers of the presidency unless we take immediate action to ensure accountability, integrity, and justice prevail.”
He sent a letter to his colleagues saying, “This amendment will do what SCOTUS failed to do—prioritize our democracy,” urging his colleagues “to stand with me on the front line to protect our democracy.”
“Immediate action,” unfortunately, is unlikely and perhaps unlikely in the hyper-partisan Congress. The House and the Senate both must approve the resolution with two-thirds votes. If that occurs, three-fourths of the states, 38, will have to ratify the amendment before it is added to the Constitution. The process could take years, far more years than Donald Trump will serve if he is re-elected. But the danger Congressman Morelle sees flowing from Trump is real and it is imminent and there is precedent.
0-0-0-0
What Trump did and said after the death five years ago of George Floyd prompted the Chicago Council of Lawyers to speak out. It’s a little long but it’s important reading in today’s climate.
The United States is a Nation Ruled by Laws, Not Kings
The Rule of Law, not the rule of kings, is a founding principle of our country. It remains a core principle that defines who we are as Americans. It allows each of us to walk down a public street without fear of being grabbed, without cause, by government police and thrown into an unmarked van. It allows us to have a peaceful potluck with friends without fear that a government official will use violence against us just for getting together. It allows us to speak our mind against government policies, without worrying that those with power will use our speech as a reason to harm us…
The Rule of Law in the United States does not begin with the President. It does not begin with any political party. It begins with Our Constitution…The President isn’t at the top. The Constitution is…
The original Constitution is mainly about one thing: power. The Constitution’s structure for our government is borne from the core principle that a single individual should not hold all power. It divides power between three branches of government, and it further divides power between the federal government and the States, whose laws are also subject and subordinate to the Constitution…
The U.S. Supreme Court has always ruled that none of the Bill of Rights, not even the First Amendment, is unlimited. But these Court decisions recognize that the limits on our individual rights must be constructed with care and exercised in a narrow and judicious manner. In 1969, for example, the U.S. Supreme Court (Shuttlesworth v. Birmingham) held, in protecting an American citizen’s right to protest and also allowing for certain limited restrictions, that any licensing requirement for “free expression in publicly owned places” is unconstitutional if it’s not narrowly defined and objectively applied.
The Constitution, again seeking to limit federal authority, provides that each state is empowered to establish and enforce laws protecting the welfare, safety, and health of the public within its state. The power of states is reflected in the fact that most criminal law is state law; most police forces are state police forces, not federal. While there is some federal criminal law, in comparison to state criminal laws, it is narrow and constrained. There is no federal law giving a President the right to direct federal officers to occupy a city or a state or to dominate any part of a state, on his own accord, without an invitation from a state government that is seeking help.
Federal law gives federal authorities the right to conduct some actions within states, but these authorized acts are targeted and constrained. Federal agents are authorized to protect federal properties. Federal agents are authorized to enforce federal criminal laws, such as kidnapping, bank robbery, criminal conspiracy, human trafficking, mail fraud, and other specific laws. This all fits within our established system of laws. These laws are all tailored to fit within the bounds of our Constitution.
Federal Officers are Doing Precisely What the Constitution Prohibits
Is the President following these laws? Is he abiding his oath to serve the Constitution? What are federal officers in Portland doing? As summarized on July 17 by Charlie Warzel, an opinion writer at large for The New York Times:
Thursday night [July 16] marked the 50th consecutive night of demonstrations in Portland, Ore. The protests began after the killing of George Floyd—tens of thousands of people took to the streets to protest police violence and racial injustice. Since then, the protests have grown smaller, but clashes between law enforcement officers and protesters have escalated—on July 12, videos circulated of a federal officer shooting a protester in the head with a nonlethal munition, resulting in a skull fracture. Coverage of the unrest has caught the attention of President Trump, who vowed to ‘dominate’ the protesters with federal law enforcement officers.
The New York Times reported the story of Christopher David, a former Navy Civil Engineering Corps Officer and a 1988 graduate of the U.S. Naval Academy:
“I wasn’t even paying attention to the protests at all until the feds came in,” Mr. David said. “When that video came out of those two unmarked guys in camouflage abducting people and putting them in minivans, that’s when I became aware.”
He had taken a bus to the Portland courthouse and was about to leave around 10:45 p.m. when federal officers emerged and began advancing on the protesters. He said he felt the need to ask the officers, Why were they violating their oath to the Constitution?
Instead of getting an answer on Saturday, Mr. David, a 6-foot-2, 280-pound former Navy varsity wrestler, found himself being beaten with a baton by a federal officer dressed in camouflage fatigues as another doused him with pepper spray, according to video of the encounter.
As Mr. David noted, one widely circulated video from Portland shows a group of men in camouflage military-like uniforms emerging from a van that one might see in anywhere USA, grabbing a protester walking alone on the sidewalk, not on or next to federal property, forcing him into the van without telling him who they were or why they grabbed him, and driving away. Another video shows federal police using tear gas and flash bangs on a single line of about two dozen mothers linked arm-to-arm, wearing bike helmets, and chanting “moms are here, Feds stay clear.”
Every Oregon official that might have authority to request help from federal officers has pleaded for the federal agents to leave. Portland Mayor Ted Wheeler told NBC News that the presence of federal agents was making things worse: “…They’re not wanted here. We haven’t asked them here. In fact, we want them to leave.” Oregon Governor Kate Brown asked the President directly to withdraw these agents from her state. The Washington Post reported on July 17 that the Governor said: “I told him that the federal government should remove federal officers from our streets. I said it’s like adding gasoline to a fire.” The Post also reported that Governor Brown is convinced that “‘they are not interested in problem solving,’ and this has ‘nothing to do with public safety.’”
Oregon Attorney General Ellen Rosenblum has sued to prohibit these federal agents from making further arrests and continuing to violate the Constitutional rights of protesters and those detained. “I think every American needs to be concerned about what’s happening here in Portland. These federal agencies are operating with no transparency and against the will of just about every leader in our state,” said Rosenblum.
Federal officials claim that federal law gives their agents the authority to do what they are doing, regardless of whether proper state authorities request their presence. These claims are specious, at best. It is not even a close call…
The federal agents are not limiting their targets to the specific individuals violating federal law by damaging federal property. They are not using their authority narrowly, when they use their weapons against mothers standing in a line chanting or when they strike and pepper spray a U.S. Navy veteran who is trying to talk with them. These federal officers are not judiciously using their authority when they grab a man walking alone on the street and take him by force into an unmarked van and drive him away to an undisclosed location – all without any probable cause or identifying themselves as federal officers.
Whatever the reason, the federal officers are making the streets of Portland more lawless, not less. These federal officers are openly and egregiously violating the rights of peaceful, law-abiding mothers, veterans, and other Americans, rather than protecting them. These federal officers are jeopardizing the safety of local law enforcement, not bolstering it…
Trump is now Primed to Attack the Rule of Law in Chicago
The President now appears to be targeting Chicago, just as he has targeted Portland – but this time, the President is not even offering the guise of protecting federal property as the reason. The Chicago Tribune reported on July 20 that the “U.S. Department of Homeland Security is crafting plans to deploy about 150 federal agents to Chicago this week.” The paper reports that the Department has not disclosed its plan for the additional agents, and that even the Superintendent of the Chicago Police does not know why this administration is sending additional federal law enforcement.
The President has talked as recently as July 20 about sending in troops to fix the local violence problem in Chicago. It is undeniable that parts of Chicago do have a serious gun violence problem that needs to be fixed. Reasonable people have asked whether more government policing would help; other reasonable people have asked whether it might help to do policing in another way. Whatever the solution or solutions might be, the President has no legal authority —without a request from legally authorized Illinois officials—to move federal officers to Chicago for the purpose of confronting local crime issues. Neither Chicago Mayor Lori Lightfoot nor Illinois Governor J.B. Pritzker have requested additional federal officers for that purpose.
There have been ongoing peaceful protests on issues of anti-Black racial injustice in our town, but there has been little-to-no reported property damage from the recent demonstrations. Further, and more to the point, we are not aware of a single report of any damage to federal properties from the recent protests…Yet, Trump has recently grouped Portland with Chicago and other American cities, such as Detroit, Philadelphia, and New York, as places of “anarchy.” For Chicago, and we expect for the other named cities too, this is less true than saying that a naked emperor is wearing the most beautiful clothes ever made from satin and silk. Chicago is dealing with modern American problems, to be sure, which now include COVID-19 – but Chicago is not a place where anarchy reigns…
Our system starts with the Rule of Law, not the rule of a king or an emperor or even a President.
President Trump and the leaders of the officers in his administration apparently have no shame. The Trump administration started to use federal agents dressed in military gear to attack peaceful, law-abiding citizens in Portland. Now, it is moving federal officers into Chicago to possibly do the same thing in our city; it is threatening to deploy more federal officers in other cities throughout America…Whatever federal agents are now doing in Portland, we do know one thing about their actions: they are not doing them in the name of the law.
Many people fear the United States Supreme Court has blown a hole in the Constitution and has given Donald Trump Carte Blanche to do anything that he wishes to do in carrying out his stated vengeance campaign.
It is beyond urgent that this hole in the Constitution be closed. It is time to create Donald Trump’s legacy—-which he will not want—-by enacting a 28th Amendment to protect all of us from someone who believes he is greater than the country he seeks to rule.