The use of that misleading axiom “no man is above the law” should be restricted to political rallies and bars. Our Orwellian laws make some men (and women) more equal than others.
The aspirational maxim may conjure an image of a blindfolded, toga-clad Lady Justice, holding antiquated scales in her right hand and a quick sword in her left. That Renaissance-era statue personifies impartiality. Similarly, “no man is above the law” suggests that the law applies the same to all people. These days, the phrase often finds itself in proximity to a President Trump reference.
But in application – especially in legal proceedings – the circular nature of the adage is revealed. Let’s review some stark examples.
The exception proves the rule?
Excusez-moi. Maricopa County Sheriff Joe Arpaio found himself chin deep in agua caliente at the federal courthouse. Repeated civil rights violations by the former U.S. Marine and federal drug agent resulted in a finding of criminal contempt by a lifetime Article III federal judge. But just before sentencing, President Trump issued a full pardon. Sheriff Arpaio walked away a free man.
The “law” in this case turned out to be the Pardon Clause in the U.S. Constitution and “the man” a pardonee.
Where’s the beef? What about the poacher who crossed from Montana to Wyoming and, out of season and without a license, bagged several bull elk, and then crossed back to his home state with the meat? He unsuccessfully appealed his jury conviction through the Wyoming state court system before reaching the U.S. Supreme Court. Five Justices let him off due to his ancestry. You see, Clayvin Herrera (the hunter) was a member of the Crow Tribe and claimed hereditary hunting rights under an 1868 treaty.
The “law” in this case turned out to be a dusty treaty and “the man” a Native American.
Quis custodiet ipsos custodes? A federal judge authorized the late-night search of William Jefferson’s office based on an 88-page FBI affidavit that read like a cheap crime novel. Although the FBI got its facts right, this William was no ordinary Billy. He was a bona fide member of the U.S. House of Representatives (D-La), and the raid occurred at Office Number 2113 in the Rayburn House Office Building on Capitol Hill. The federal judge found no merit in his congressional immunity argument, but on appeal, the U.S. Court of Appeals for the D.C. Circuit held otherwise, struggling over the separation of powers between the Executive and Legislative branches. The Executive Branch was ordered to return privileged documents and prohibit the “FBI agents who executed the search warrant … from disclosing the contents of any privileged or ‘politically sensitive and non-responsive items,’” or otherwise assisting in the criminal prosecution.
The “law” in this case turned out to be the Speech & Debate Clause of the U.S. Constitution and “the man” a crooked Congressman.
You have the right to … The tenacious NYPD Sex Crime Detective caught the serial rapist. Two victims provided positive IDs of the knife-armed perpetrator of a suspected 15 rapes in Manhattan. But at the station, 19-year old Manuel Ayree declared diplomatic immunity as the son of a low-level attaché to the Ghanaian UN delegation. The assailant was released and as punishment repatriated to Ghana.
The “law” in this case turned out to be the U.S. Diplomatic Relations Act and “the man” a junior diplomat’s son.
Judge Not … The California Superior Court Judge was irritated with the county public defender for missing the docket call. Surprisingly, the judge ordered the police to “rough him up a little” during an arrest. The obedient police forcefully subdued the subject. After his bruises healed, the public defender-turned-plaintiff filed a Section 1983 civil rights lawsuit. A federal judge dismissed the lawsuit based on the absolute immunity afforded judges. On appeal, the U.S. Circuit Court of Appeals for the 9th Circuit decided the state court judge had stepped out of the batter’s box and lost his immunity. In the final appeal, the U.S. Supreme Court exonerated the judge and reiterated that “judicial immunity applies even when the judge is accused of acting maliciously and corruptly.”
The “law” in this case turned out to be non-statutory case law on judicial immunity and “the man” a judge.
Based on these and numerous other examples, a clarification to the technically correct aphorism is required: “While it may be true that no person is above the law, the applicable law is not the same for all people.”
And Mr. President?
The federal legislative branch has 535 members. The federal judiciary is led by nine Supreme Court justices. The Executive Branch – the branch that oversees approximately 4.1 million of the 4.2 million federal employees – is headed by ONE POWERFUL PERSON. The Founders were intentional and rejected a multi-person tribunal: “The executive Power shall be vested in a President of the United States of America.” The President is the commander-in-chief, fills all judicial, diplomatic and prosecutorial positions, possesses veto power, can fully pardon anyone of a federal crime, and controls the Executive Branch.
The Federalist Papers portray the president as a pseudo-monarch, but significantly restrained by a four-year term, re-election by the people, removal by Congress for specified cause, and specific delegation and reservations of powers (taxation, declaration of war, passage of laws, advice and consent, interpretation of law, the 10th Amendment, etc.).
Naturally, like the examples above, the law that applies to the President is justifiably different than the law that applies to the rest of us. Alexander Hamilton explained the concept in Federalist Paper No. 69: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.”
The esteemed Office of Legal Counsel in the U.S. Department of Justice has twice opined on this temporary immunity of the U.S. President. Both opinions, the most recent of which was issued in October 2000 (seven years into the Clinton Administration), held that the “indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers.”
Before you disagree, you should read the 39 pages of well-reasoned analysis.
Don’t fall victim to some sanguine belief that the law is the same for everyone. And don’t let your disdain or affinity for the current President skew your analysis of the law as it applies to a sitting president. While in office, the President has immunity from indictment and criminal prosecution. But unlike some other immunities that exist at law, the President’s immunity is temporary, and subject to re-election, term limits, and impeachment.
» BEN WILLIAMS, the author, is a Mississippi attorney. Email Ben at Ben39157@gmail.com. FORD WILLIAMS, the artist, is a senior at Savannah College of Art & Design (SCAD) in Georgia.
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