To Comfort The Afflicted
And Afflict The Comfortable

To Comfort The Afflicted And Afflict The Comfortable

Friday, December 4, 2020

#GivingTuesday                               Observercast

Is The President Above The Law?

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BY SUSAN ESTRICH

The Constitution establishes impeachment as the means of removal of the president by Congress. As we discover each time we go down this road, “high crimes and misdemeanors” means pretty much whatever the House and Senate think they do, which is to say it is a political standard.

But nothing in the establishment of a political standard for impeachment places the president above the law, as the Supreme Court has repeatedly held, and as we all held dear. Nothing in executive privilege immunizes the president or his agents from applicable criminal laws. High office is not a license to lie, cheat and steal – at least so long as you’re in high office. Not in our system. As I recall, that was part of the point.

The difference between impeachment proceedings and proceedings on an indictment is the difference between political theatre and the judicial process. I mean no disrespect to political theatre: It is the script for our democracy. And I am the last one to pretend that what goes on in the courtroom is not loaded politically, on all sides. But there is still a difference, one this president may not respect but is at the core of our democracy.

Congress does the will of the people.

The courts enforce the law.

The judicial process is full of showmen and spinners. Not every judge deserves to be one, by any standard. Jury consultants do everything possible to skew juries, if it gets that far.

But a court of law is still different. The rule of law defines the proceedings. Process matters. Misdemeanors and felonies must be pled and proven, according to legal standards. Evidence must actually pass standards to be considered. Any semblance of politics gets you thrown out the door.

This is what President Donald Trump fundamentally does not understand. He believes that he controls everyone he appoints, that everything is politics, and that all politics is about him. That may be true in Trumpland but not under the Constitution. Not what the Founding Fathers envisioned. Not at all. All wrong. Three branches of government. Checks and balances. No one above the law.

The chief justice should not have to stand up for three branches of government. Checks and balances. Life tenure. The president makes no effort to hide his contempt. Make no mistake about it. These attacks on the Supreme Court are calculated.

Trump gives one so much to worry about. But a president who considers himself above the law when the constitutional system of our democracy makes so clear that he is not may be the most worrisome of all.

The miracle of our democracy is our ability to rise above partisanship when it matters most. At no time has the Supreme Court been more respected than when it has done that. At no time has it been less respected than when it is perceived to be doing politics.

There is no Army to enforce the decisions of the courts. The U.S. Marshals provide security, a huge challenge itself. The rule of law depends on our faith and belief in it. Preserving that faith is more important than any president, even or perhaps especially President Trump.

Susan Estrich’s columns appear regularly in The Oklahoma Observer

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Susan Estrich
Susan Estrich
Estrich served as a law clerk for Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia and Justice John Paul Stevens of the U.S. Supreme Court. In 1988, she was the campaign manager for Michael Dukakis' 1988 presidential run, even though she had never before managed a political campaign. She was the first female campaign manager of a major presidential campaign, and the first female campaign manager of the modern era. [5] [6] Estrich appears frequently on Fox News as a legal and political analyst, and has also substituted for Alan Colmes on the debate show Hannity & Colmes. She writes regular articles for the conservative website NewsMax, for which she is a pundit.[7] She is also on the Board of Editorial Contributors for USA Today.[8] She is currently a law professor at the University of Southern California Law School and a political science professor at its affiliated undergraduate school. Before joining the USC faculty in 1989, she was Professor of Law at Harvard University, where she was the youngest woman to receive tenure.[9] On January 10, 2008, Estrich joined Quinn Emanuel Urquhart & Sullivan, LLP, a law firm based in Los Angeles, where she chairs their Public Strategy in High Profile Litigation: Media Relations practice area. [10][11] She writes a nationally syndicated print column distributed through Creators Syndicate.