On Monday, U.S. Sen. Dan Sullivan gave us another example of his fair-weather fidelity to the Constitution. He said the Supreme Court decision on presidential immunity “is an important ruling for the U.S. Constitution and the separation of powers principle that is the foundation of our republic.”
But it was more important to him because it ensures the criminal trial of Donald Trump for his alleged conspiracies to overturn the 2020 election won’t take place before the November election.
The ruling required six Republican appointed justices who have long claimed the mantle of originalists and/or textualists to insert new meaning into the Article II duty to “take Care that the Laws be faithfully executed.” Now presidents will be able make the infamous claim that Richard Nixon once did. “When the president does it, that means that it is not illegal.”
In 1975, the Supreme Court unanimously rejected that idea when they ruled “no person, not even the president of the United States, is completely above the law.”
Until now, at least four of the court’s current conservative justices agreed.
“No one is above the law in the United States, including the President,” Justice Brett Kavanaugh said during his confirmation hearing in 2018. “And that is something that is made clear in Federalist 69.”
“I know that both Justices Gorsuch and Kavanaugh said that no man is above the law,” Justice Amy Coney Barrett said two years later. “And I agree with that.”
Long before them, Chief Justice John Roberts believed it too. But with Trump at the plate, the man who once said his “job is to call balls and strikes and not to pitch or bat” opted to narrow the strike zone so much that prosecutors may never be able to find it.
“True, there is no ‘Presidential immunity clause’ in the Constitution,” Roberts admitted. So the justices turned to the separation of powers that Sullivan mentioned.
That’s also a vital element to the Constitution’s appropriation clause. Without it, the president could use treasury funds for whatever purpose he wishes. But Sullivan zipped his lips when Trump confiscated $18 billion from the congressionally authorized defense bills to build his wall.
More to the subject at hand, when Trump was impeached after the Jan. 6 insurrection, Sullivan argued that convicting him would “create a troubling, unconstitutional precedent in which former officials—private citizens—can face impeachment and conviction.” But as we know now from his full-throated endorsement of Trump now, even if the senate trial was held while he was still president, Sullivan would have made up another convenient excuse for betraying his juror’s oath to “do impartial justice according to the Constitution and laws.”
Sen. Mitch McConnell (R-Ky.) described Trump’s failures during the insurrection as a “disgraceful, disgraceful dereliction of duty.” Then he excused his acquittal vote by stating what he and everyone else believed at the time. “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.”
It’s impossible to imagine Sullivan praising this Supreme Court ruling if it came in response to a criminal indictment of Barack Obama. But then again, it’s more likely the four justices who once believed no one was above the law would have would have summoned up the founders’ original meaning so clearly stated in the court’s 1975 ruling.
There’s another important distinction between then and now. Because Republicans of that era believed it was in the country’s best interests to learn the full story about the scandal Nixon was involved in, all but four voted to open an impeachment inquiry.
Most of Republicans today don’t want voters to see the evidence of Trump’s illegitimate scheme to remain in power. We know that because they voted against a bill to establish an independent, bipartisan commission to investigate it. They may have used altruistic sentiments to justify that, but their main objection was its findings would likely hurt their party in future elections.
However, until the Supreme Court stepped in, they were helpless to prevent the truth from being revealed in a criminal trial. Now they’ve got gift wrapped permission to resume an electoral strategy that makes the coverup which ultimately led to Nixon’s resignation look like a mere class Class C misdemeanor.
• Rich Moniak is a Juneau resident and retired civil engineer with more than 25 years of experience working in the public sector. Columns, My Turns and Letters to the Editor represent the view of the author, not the view of the Juneau Empire. Have something to say? Here’s how to submit a My Turn or letter.
