Is Trump Above The Law? SCOTUS Says No

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Donald Trump has marked his career in real estate by being litigious. Don’t like the work that someone performed for you? Sue. Decide not to pay an invoice for services rendered? I’ll see you in court. Disagreement about the quality of goods purchased? I’m not paying and we’ll let a judge decide.

This has been Trump’s life. Usually he had been successful. After all, in many cases Trump has his attorneys file continuances and additional discovery.  If you have been unlucky enough to be involved in a civil court case with Trump, and you didn’t have enough money to continue to pay an attorney, then eventually you give up. You settle. Historically for pennies on the dollar. One could go so far as to presume that Trump specifically chose people with whom to do business whose pockets were not as deep as his so he could continue his monetary malfeasance.

As president he has continued to use the courts to avoid culpability. Sometimes he has been successful, but more often he has not. As usual and what has become customary for Mr. Trump, he has taken to Twitter to express his outrage when he doesn’t get the result with which he agrees. 

Today was a particularly circuitous tweet rant from the White House. 


I love it! Political witch hunt, prosecutorial misconduct, and presidential harassment in all caps. Trump is more truculent than normal this morning. But why? The Supreme Court. You have to give it to Trump. He thought that by appointing justices Neil Gorsuch and Brett Kavanaugh that he could shield himself from any rulings against him or his administration. He was certain that the now 5-4 conservative leaning court would buttress him from the crazy left-wing progressive Democrats who were sure to assail him at every given chance. 

Neil Gorsuch (left) Brett Kavanaugh (right)

The president’s attorneys have argued before the Supreme Court that as president Trump is immune from prosecution. Trump’s attorney Jay Sekulow asked the court for temporary presidential immunity. Sekulow argued that Trump (or whomever is president at the time) couldn’t be investigated or prosecuted while holding the office of President. No subpoenas, no testimony, no indictments, if investigators sought those. He went on to say that the “Criminal process targeting the President” violates the Constitution.

As a quick thought experiment, let’s imagine that Trump was charged with a crime, a felony, and found guilty. The sentence for the guilty verdict is five years in a state prison. Trump is arrested, taken into custody, and remanded to prison to begin serving his five year sentence. Is he still the president? Would Trump be granted daily leave to conduct the business of the presidency? Since he cannot as an incarcerated felon discharge his duties as president, would his cabinet invoke Section 4 of the 25th amendment?

Perhaps the cabinet decides not to exercise their authority to remove Trump. Now it becomes the responsibility of the Congress. Would the Republicans impeach Trump while he is languishing in prison? If Republican voters maintained their 85%+ support of Trump, believing his imprisonment to be the ultimate witch hunt while protesting and rioting in the streets, would Republican members of Congress decide not to remove Trump? Could we possibly have a president serving from a six by ten jail cell? Would he retain 24 hour secret service protection? Would he still have the nuclear football?

You can see how in practical terms that the prosecution of a criminal president when no one in his party holds him accountable could quickly spiral out of control. It is from this perspective that Jay Sekulow has a point. 

Jay Sekulow arguing during Trump impeachment

Gratefully the Supreme Court did not participate in my thought experiment. Robert Barnes reported in the Washington Post today that all members of the court rejected a sweeping claim of immunity promoted by the president and his lawyers. “In our judicial system, ‘the public has a right to every man’s evidence,’ ” Roberts wrote in the New York case, citing an ancient maxim. “Since the earliest days of the Republic, ‘every man’ has included the President of the United States.”

Even Trump nominees Neil M. Gorsuch and Brett M. Kavanaugh agreed with the outcomes of the cases. Justices Clarence Thomas and Samuel A. Alito Jr. dissented. 

Justice Clarence Thomas (bottom left) Justice Samuel A. Alito (top right

Ultimately the court decided that the SDNY may have access to Trump’s financial records, and we don’t have to wait for Trump to turn them over. His accounting firm, Mazars USA, will immediately release them. What about Congress? The Supreme Court ruling basically states that they have to narrow their reasons for requesting Trump’s financial records. In addition they returned the subpoena for Trump’s financial records to the lower court citing separation of powers issues. 

What do you think? Is Trump being unfairly prosecuted or is he behaving like he’s above the law? What do you think about the Supreme Court’s decision?

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