The saying “No one is above the law” is considered a fundamental principle in American democracy, although the concept actually predates the founding of this nation by more than 500 years.
The New York Times, in a story this past summer, explained that the idea that everyone, no matter their station, should be legally accountable for their actions dates back at least to Britain’s Magna Carta. That document, written in Latin in the early 13th century, established the king and his government were not above the law, although it was understood that the king enjoyed some prerogatives that no one else in his kingdom did.
The same carve-out remains true in this country, as has been demonstrated with the on-again, off-again legal troubles of Donald Trump.
Now that Trump is about to return to the White House, all of the criminal charges against him are either disappearing or losing steam. The unfairly maligned special counsel, Jack Smith, who vigorously pursued federal charges against former President Trump for his conduct at the end of his presidency and shortly thereafter, is now abandoning the prosecution against President-elect Trump.
In doing so, Smith and his team have concluded that U.S. Justice Department policy, a recent Supreme Court decision and the Constitution all preclude against the criminal prosecution of a sitting president, no matter how solid the evidence might be. The national interest that a president not be hamstrung in carrying out his grave governing responsibilities supersedes the national interest of upholding the rule of law without exception. In other words, it would be impossible for presidents to effectively govern if they had to be worried with being hauled repeatedly into the courts by political opponents or upright prosecutors.
This does not mean, of course, that presidents can “get away with murder.” But what it does mean is that when the electorate sends a person to the White House, the only institutions that can hold the president accountable are those same voters or their elected representatives in Congress.
That’s where the impeachment process comes in. Twice during Trump’s first term, he was impeached by a Democratic-controlled House, but both times the Senate declined to convict. At least in the second instance, when Trump incited a riot at the Capitol to try to stop the certification of his successor, Joe Biden, the offense rose to what should have been permanent disqualification from the office, but most members of Trump’s own party were unwilling to impose the deserved punishment. Some balked because of their loyalty to Trump or their fears of the backlash they might receive from his ultraconservative base. Some because they mistakenly thought Trump’s political career was over and conviction would be a moot point.
Should Trump’s conduct in a second term be anything like it was at the end of his first, it will be up to Congress, not the courts, to hold him accountable. With Republicans in the majority in both houses, impeachment and removal would both require bipartisan support. For a measure so extreme, that’s how it should be.
