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A president above the law?

15 118 0
05.11.2019

Trump believes he is above the law.

Is he? How can he make that claim? Will it stand?

One of the absolute fundamentals of American democracy, carved in stone above the entrance to the Supreme Court is "Equal justice under law." One of the absolute fundamentals of the very idea of liberal democracy, inscribed in the UN's Universal Declaration of Human Rights, is "All are equal before the law."

At the moment, however, it appears that Trump's claim is the official and prevailing legal opinion in the US. It is the opinion of the Department of Justice (DOJ) that the president is immune from criminal prosecution. That opinion is what drove Robert Mueller into the labyrinth of tortured reason and his report into incoherent knots. If the president could not be indicted, he would not have the opportunity to be tried and - possibly - refute the charges by being found not guilty, therefore, it would not be fair to say he committed crimes even if - especially if - he had committed crimes.

The DOJ's position rests on two documents, the Moss Memo written in 2000, which is based on the Dixon Memo from 1973. This year, 46 years later, it turns out that the Dixon memo said a sitting president is immune from prosecution because that is what the then Attorney General, Elliot Richardson, wanted it to say. He wanted to be able to prosecute Vice President Agnew because the evidence against him was too messy and ugly to ignore - he was taking cash kickbacks from Maryland contractors while he was VP - but he needed the memo to say the president was immune, because if it did not then President Nixon would quash it. That is why Dixon threw that part in, even though it was not part of the question he was asked.

The legal argument for the president's immunity from prosecution is that because the Constitution provides for impeachment, impeachment must come before any other criminal procedure. If impeachment fails, the criminal procedure would have to wait until he was no longer president.

The practical argument is that the president has such unique and important tasks that he should........

© Al Jazeera