It is—supposedly—the proud boast of our democracy that we have “a government of laws and not of men.”
So the Supreme Court’s rejection of former-President Trump’s immunity claim should (already) read. Yet so wrote Justice Antonin Scalia, arguing that Congress could not appoint a prosecutor whom the President could not fire, effectively immunizing a sitting President from criminal investigation.[1] There’s the rub. Even under the guise of the rule of law, Republicans believe Republican presidents stand above it. Right now, by its deliberate delay, the Supreme Court has immunized former-President Trump from criminal liability for instigating a coup d’état. Even a correct decision now comes too late. Trump will not be tried, let alone convicted and sentenced, before the 2024 election. Law is practice, not theory. In America, now, an insurrectionist may run for President.
But don’t just blame Republicans. The rule of law means not only that Presidents are subject to the law, it means that they are subject to the same law governing us all. Set aside your squishy morals for the moment for pure politics. Among the best guarantors of the rule of law is the common law’s old adage: sauce for the goose is sauce for the gander. Voters are fickle, political winds always change, and a tyrannical majority eventually finds itself a tyrannized opposition. In politics, meet hardball with hardball. Of course, if John Roberts even halfway suspected that Joe Biden would effectively wield a SCOTUS-approved absolute executive immunity, he would already have rejected former-President Trump’s claim for it. But he doesn’t. And so here we wait, hoping for the Supreme Court to rule that a President can be criminally prosecuted for instigating a coup d’état. That’s not Roberts’ fault—that’s Biden’s.
From day one—from engaging with Republicans’ shenanigans in the January 6 hearings, to waiting nearly two years to appoint Jack Smith to indict Trump for the coup, to the battery of secondary indictments (looking at you New York, Georgia, and classified documents)—Democrats have failed to rise to Republicans’ existential threat to our democracy. And that threat makes their passivity all the more galling, because this isn’t just a matter of base politicking. Our constitutional tradition authorizes and directs Democrats to play hardball here.
Start with the baseline. Presidents are not kings. Washington established this by stepping down, Adams by getting voted out. They are subject to court orders. Chief Justice Marshall made Jefferson turn over evidence in Burr’s treason trial. Monroe had to answer written questions in an 1818 court martial. Nixon had to turn over the Watergate tapes. And Clinton had to give both criminal testimony and sit for a civil deposition.[2]
Spare me protest that the Supreme Court has held Presidents immune from civil damages. That aberration of reasoning is best defended by the pragmatic rule that the U.S. Treasury should be on the hook for Presidential screwups. But no matter. Our tradition makes crystal clear: even kings suffer the law’s consequences. Parliament not only ratified each of Henry IV’s, Edward IV’s, and Henry VII’s deposition and killing of their prior, it ordered Charles’ execution. And, to my recollection, even the great conservative Cicero—contrary to the general Roman right of appeal (provocatio) against capital sentences—held that anyone who commits a crime of existential nature against the state, e.g., a coup d’état, could and should be executed immediately. If we can lawfully depose and kill an anointed king, we can criminally charge a President.
So, by noon on January 21, 2022, Donald Trump should have been locked away in an unmarked Federal prison cell. Simultaneously, Democrats in both Houses of Congress should have—just as the Reconstruction Congress did to the insurrectionist ex-Confederates in December 1865—expelled any member who failed to ratify the election, supported the coup, or failed to impeach or convict its leader. Assuming he were still alive (which I tend to believe the prudent course), after an unimpeded month of Congressional investigation, President Trump could be re-impeached, convicted, barred from office, indicted, convicted, and incarcerated. And, for good measure, Congress could have debilitated the party of insurrection for generations by passing comprehensive voting rights legislation and packing the Supreme Court when it inevitably attempts to strike the legislation.
Democrats’ indecision has given John Roberts all the assurance he needs to hold another Republican president above the law. If Donald J. Trump retakes the Presidency in 2025 and pardons himself, don’t only blame Republicans. Caesar, after all, didn’t remove himself from the proscription list.