Fire Blanket
It’s a seductive argument, one that Dick Cheney and folks who grew watching the TV show “24” would understand. They argue that sometimes the President of the United States has to break the law in order to protect the Nation. Sometimes he has to do the “dirty work”, the nasty, wet work, that the general public doesn’t need, or want, to know. At least, that’s what they think.
I mentioned Dick Cheney, because those of us who are old enough remember the “Darth Vader” of the George W Bush administration. After 9-11, it was Dick Cheney, at the “undisclosed location”, who orchestrated America’s response. Sure, the President was out there speaking at the World Trade Center site; “…I can hear you! The rest of the world hears you, and the people who knocked these buildings down will hear all of us soon”.
But Cheney was preparing to get intelligence on those “people”, in any way he could. He made sure that a Justice Department lawyer, John Yoo (now a professor at Cal-Berkley Law School), authored a memo saying waterboarding, stress positions, enforced nudity, forced simulated sex positions, sleep deprivation, and auditory overload were all; “not torture”. And then Cheney sent American forces out to find who could identify the ones that “…knocked these buildings down”. They were kidnapped, and sent to “black sites” that were NOT on American soil so US Courts could not intervene.
Those folks were “interrogated, not tortured”, according to the “memo”. And the information gained was generally “not valid”. Senator John McCain, himself tortured and permanently disabled by the North Vietnamese said it best. There comes a point where you’ll say anything to make it stop, true or not. Just give the torturers whatever they want to hear.
Why did Cheney get a Department of Justice, Office of Legal Counsel memo? Because he needed cover, a paper fire-blanket to wrap around himself. He knew: someday somebody would say the obvious, that “torture is wrong and that was torture”. Cheney needed a get out of jail card, and John Yoo wrote it for him.
Criminal Liability
And what’s important about that now? Because if Dick Cheney thought the President of the United States (under whose authority he was acting) was immune from criminal prosecution, then he wouldn’t have bothered with John Yoo’s infamous work.
Richard Nixon wouldn’t have taken a pardon from Gerald Ford after he resigned from office. Nor would Bill Clinton gotten a plea deal where he lost his law license for committing perjury under oath. The bottom line: every President since George Washington knew that if they broke the law, they could be held accountable. The Presidents knew they were safe from legal action while in office, barring impeachment and conviction. And they also knew that they weren’t immune after they left office.
The Founding Fathers were surely spinning in their graves last week. The Supreme Court of the United States seemed to be seriously considering whether a President has immunity from criminal prosecution, not just in office, but for life. That is perilously close to creating a “sovereign king”, the one thing all of the Founding Fathers pledged “…their lives, their fortunes and their sacred honor” to end. When lawyers for the ex-President made the argument that George Washington would agree with them, historians were aghast. We all know better, as does every school-kid in America. And so do those lawyers, and the nine solemn judges on the bench.
Russian Roulette
Former Attorney General Bill Barr summed up the view for a few of those Justices last week. Barr sees Trump as a dangerous individual, a “Russian Roulette” choice as President. But he sees the “Progressive Agenda” of the Biden Administration as so dangerous, an “existential threat”; that he is willing to “spin the barrel” and pull the trigger on a second Trump Presidency.
I suspect Justices Thomas, Alito, Gorsuch and perhaps Barrett all feel that same way. They certainly seem willing to distort American legal history, and create a new “immunity” out of whole cloth to wrap around Donald Trump. And that immunity is absolutely “gas on a fire” when it comes to the ex-President.
By any measure, the previous Trump candidacy and Presidency was characterized by the destruction of “norms”. Norms are the unwritten rules that controlled American government, from Senate approval of executive department leaders (Trump filled many offices with temporary leaders) to taking moral stands in American crises (“good people on both sides”), to the peaceful transition of power from one President to another. We know all about that one. Trump broke ignored the norms.
And several members of the Supreme Court seem to be seriously considering whether to remove not a norm, but an actual disincentive to breaking laws: legal, criminal responsibility. One of the Justices mentioned the now infamous “Seal Team Six” scenario, that came up in the Appellate Court argument. “What if the President ordered Seal Team Six to assassinate his political opponent. Would he have immunity from the criminal liability then?” The Trump response in the DC Circuit was: only if he was impeached and convicted first.
Command Responsibility
But Justice Alito blew through that scenario. He simply said that Seal Team Six was bound by the Uniform Code of Military Justice, and so wouldn’t obey an “illegal order”, even from the President. But what if they did obey a Presidential command? Well, they would be criminally liable. So the executors would be liable, but the actual commander would not be?
Every Four Star General and Admiral knows they are responsible for their actions. Every Department Secretary is as well. So why would the President, the most powerful “man in the world”, not be held to the same standard as their subordinates? The short answer is: for 235 years, up until today, they have been.
Hebert Hoover sent the US military to clear the “Bonus Army”from the National Mall in 1932. Franklin Roosevelt interned American citizens of Japanese descent. Truman used the atomic bomb. Lyndon Johnson lied about Vietnam, and Richard Nixon covered up a felony break-in. Bill Clinton made a deal, and George W Bush kidnapped foreign citizens, transported them to foreign bases, and had them tortured. Barack Obama had an American citizen killed by drone strike, and sent Seal Team Six to kill Bin Laden.
All of them, faced the possibility of criminal action. And all of them, right or wrong, did what they thought was best in their crisis. So who can’t handle it? Who needs a Supreme Court designated “get out of jail” card?
Of course; it’s the Ex-President and current candidate, Donald Trump.
