Rex non potest peccare – the king can do no wrong.
It is really rather remarkable that in a modern republic, one that prides itself on championing the rule of law and was founded in a revolutionary war against monarchy, that judges should be asked to test the applicability of that old British constitutional maxim. Odder still that there is any doubt which way the US supreme court will rule when in a few weeks it considers former president Donald Trump’s insistence that he has sovereign immunity in respect of the 91 criminal indictments he faces over his time as president and which will fall if he succeeds.
But there is indeed considerable doubt about this reactionary, very political court – three of whose nine members were appointed by Trump –and which shortly has also to consider the Colorado supreme court’s ruling, likely to be followed by other similar findings, that Section 3 of the 14th Amendment disqualifies Trump from holding the office of president of the US.
Clause 3 of the 14th amendment, recently “rediscovered” by a couple of conservative legal academics, had been enacted in the aftermath of America’s Civil War to prevent Confederate officers from standing for election. Involvement in “insurrection” by an “officer” of the US debars the latter from serving as president. Trump’s allegedly insurrectionary attack on Congress on January 6th makes him the first former president ever to have been targeted by the amendment.
In 1787 at the convention drafting the constitution, the consensus among James Madison, George Mason, Benjamin Franklin and others who attended was clear: that presidents did not enjoy unlimited power or immunity. They could and should be held accountable for their actions, with impeachment and criminal prosecution as possibilities.
Even if, as Franklin hinted, criminal prosecution perhaps wasn’t possible for a sitting president, nothing precluded it afterwards.
Such strongly expressed views should, but seem unlikely to, have some sway with the “originalists” who dominate the supreme court’s conservative jurisprudence, and who insist on interpreting the constitution in the original spirit of its drafters. No doubt we will see some elegant intellectual gymnastics to ensure that Trump is at least on the ballot.
Two simple definitional issues at the heart of the Colorado case may suffice. Did the January 6th events, a “riot”, according to the Trump lawyers, rise to the level of “insurrection”? In its ruling, the Colorado Supreme Court reviewed a variety of colloquial and legal definitions of insurrection and reached a common-sense conclusion “that any definition of ‘insurrection’ for purposes of Section 3 would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the US government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”
“It’s true that Trump,” as David French of the New York Times argued, “wasn’t declaring a breakaway republic, but he was attempting to seize and hold far more than the Capitol. He was trying to illegally retain control of the executive branch of the government. His footsoldiers didn’t wear grey or deploy cannons, but they did storm the United States Capitol, something the Confederate army could never accomplish.”
[ America’s hell is a tyrannical Trump who will not be easily conquered ]
And does the simple omission of the presidency from the catch-all term used to describe those who may be charged, “officer of the United States”, really signify that the president is not included? Ben Franklin would scarcely agree. “Is it really the case,” French asks, “that insurrectionists are excluded from every office except the most powerful?”
Among those who fear a Trump second term, there is a not-inconsiderable number who feel that the people cannot be trusted to vote down an insurrectionist or a crook. And that something must be done on their behalf.
They take comfort in the fundamentally elitist, anti-democratic but intentional logic of the founding fathers in building into the constitution a number of anti-majoritarian measures – for example, against the restoration of slavery and for equal rights, or rigging the voting system against larger urban conglomerations. The 14th amendment is seen as a part of that tradition of protecting the people from themselves.
Yet democrats should be uneasy about Amendment 14. Although Trump should get everything that is coming to him in the other cases, and could – or should – end up in jail, attempts to remove him from the ballot paper ultimately serve only to fuel the populist argument that it is they who are oppressed and excluded and that the “system” is determined to deny them representation.
In the event, the court might distinguish in its approaches between the Amendment 14 question and the immunity issue.
It must not turn its back on the plain text of the constitution. Its denial of the outrageous claim of presidential immunity, itself an attack on the separation of powers and the court’s own “independent” role, could be a vital first step in its own badly needed rehabilitation.
The US supreme court is unlikely to stop Trump running again. Here’s why
4
0
13.01.2024
Rex non potest peccare – the king can do no wrong.
It is really rather remarkable that in a modern republic, one that prides itself on championing the rule of law and was founded in a revolutionary war against monarchy, that judges should be asked to test the applicability of that old British constitutional maxim. Odder still that there is any doubt which way the US supreme court will rule when in a few weeks it considers former president Donald Trump’s insistence that he has sovereign immunity in respect of the 91 criminal indictments he faces over his time as president and which will fall if he succeeds.
But there is indeed considerable doubt about this reactionary, very political court – three of whose nine members were appointed by Trump –and which shortly has also to consider the Colorado supreme court’s ruling, likely to be followed by other similar findings, that Section 3 of the 14th Amendment disqualifies Trump from holding the office of president of the US.
Clause 3 of the 14th amendment, recently “rediscovered” by a couple of conservative legal academics, had been enacted in the aftermath of America’s Civil War to prevent Confederate officers from standing for election. Involvement in “insurrection” by an “officer” of the US debars the latter from serving as........
© The Irish Times
visit website
login
who are we?
contact us
qosheapp
Toi Staff
Gideon Levy
Belen Fernandez
Andrew Mitrovica
Mort Laitner
Rami G Khouri
Ali Fathollah-Nejad
Nikkei Editorial
