United States flags blow in the wind in Malibu, California. (Photo by Getty Images)
Will the real America please stand up?
I know that is a tacky question to ask on what is supposed to be a birthday celebration of an inspired event in 1776. Forgive me if I am not in a celebratory mood, I’m trying to figure out this whole no-one-is-above-the-law thing.
And that’s important because it is one of the few basic concepts that I, along with hundreds of millions of Americans, was taught that now seems to be in question because of seven powerful people — Donald Trump and six United States Supreme Court justices.
No one has doubted that a president enjoys some form of immunity for good-faith acts and decisions made during a presidency. George W. Bush was demonstrably wrong for invading Iraq. History and hindsight have adjudicated him guilty, but he remains — and should remain — a free man, even for what turned out to be a combination of terrible judgment, hubris and spotty intelligence that cost the lives of civilians and our own military.
There are plenty of other questionable presidential decisions that can be given the benefit and the mercy of executive power, even though history judges them clearly wrong, including the decision to continue waging war in Vietnam, even when the military and government’s own intelligence knew that failure was likely inevitable.
However, until Monday, I truly believed the reason the Supreme Court would take the case of Donald Trump from the lower federal courts’ clear and convincing decision to allow his prosecution was because it wanted to speak authoritatively and definitively on the exact contours of executive privilege to the extent where it left no doubt that anyone, executive or otherwise, was above the power of accountability and justice.
I was wrong.
All a president must now do is convince the public that whatever he or she is doing is an official act, and — poof — it escapes judicial review. Instead of drawing a clear line on the limits of executive power, the Supreme Court’s decision gave presidents a roadmap for abuse.
Maybe most surprising about this decision is the nation’s highest court effectively put judicial review — and responsibility — beyond even its own reach, meaning that future courts will have difficulty restraining an executive so long as those acts are done under the guise of official acts.
Call it for what it is: They have literally created the ultimate Trump card.
I have been a defender and believer in our American institutions, which is part of the reason I wanted to become a journalist in the first place: Because I believe — still, amazingly — that there is a place for honest disagreement and cagey politics so long as there is a calm, powerful judiciary to keep a check on the rest of us mere mortals.
But in this latest decision, I feel like I have been lied to: That some people, dammit, are just above the law. I am frustrated and disappointed that instead of rejecting the argument that a president can order the assassination of his political rival or any other dissident and be immune from punishment, it now feels like a possibility, even though most scoffed when Trump’s lawyers suggested such a brazen, outlandish and illogical conclusion of absolute immunity.
Forgive me if I don’t feel like celebrating today. Forgive me if I suddenly feel like writing critically of those in power may now come with higher stakes. Sorry, but not even Chief Justice John Roberts almighty could convince me that the Founders, still reeling from the war with Britain and unknowingly being targeted for another invasion several decades later in 1812, would grant king-like power to an executive.
I also feel betrayed by many leaders, ancient and still clinging to power. Here is but one example from Senate Minority Leader Mitch McConnell, who, more than a month after the Jan. 6 insurrection and after Trump had reluctantly left office, lamented that he could not support an impeachment conviction of Trump because that rightly belonged to the courts:
“There is no question that President Trump is practically and morally responsible for provoking the events of that day. The people who stormed this building believed they were acting on the wishes and instructions of their president.
“And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth….
“But this just underscores that impeachment was never meant to be the final forum for American justice.
“Impeachment, conviction, and removal are a specific intra-governmental safety valve. It is not the criminal justice system, where individual accountability is the paramount goal….
“Put anther way, in the language of today: President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run, didn’t get away with anything yet – yet.
“We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.”
Now, the courts have said the responsibility for policing the executive branch doesn’t belong to them either.
The Fourth of July has always been a happy occasion to celebrate the inspired ideals that have set us apart, not because we were able to reach the lofty concepts given to us by our founders, but because they continue to call us to be something exceptional.
But today, we have the man who wrote “Proud to Be An American” hawking cheap Bibles along with a convicted rapist who talks openly about becoming a dictator on Day One of a presidency and taking revenge on his enemies, and a Supreme Court who says a president is above the law just by uttering a magical incantation of “official act.”
To borrow from poet Allen Ginsberg because my own words are paralyzed by a profound sense of betrayal and loss:
“America this is quite serious.
“America this is the impression I get from looking in the television set.
“America is this correct?”
The post We may not have kings in America, but we now have ‘official acts’ appeared first on Daily Montanan.