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Is Donald Trump above the law?

 

"Revelations and convictions will eventually force America to confront [that] simple question."
 
That's how The Economist last week raised what may well be "the question of our time":
Is Donald Trump above the law?   

 It's the question U.S. Supreme Court candidate Judge Brett Kavanaugh must answer to the satisfaction of members of the Senate Judiciary Committee, and eventually, all U.S. Senators and all Americans. His confirmation hearings begin September 4th.

The Economist went to the heart of the matter with this observation:
 
"What of the convention, which has in place since the Nixon era, that the Justice Department will not indict a sitting president? Again, there are good reasons for this ... such an indictment would set up a conflict between the bureaucracy and the president's democratic mandate that would have no happy ending. The convention would doubtless be void if there were credible evidence that a sitting president, had, say committed murder. But the payment of hush money  to avoid an inconvenient story about an extramarital affair goes falls a long way short of that."
 
A plausible scale of presidential vulnerability to the rule of law.
 
Accordingly, if the answer to the question is under certain circumstances no one -- including the President -- is above the law in America, the discussion is no longer a Yes/No Quandary. It's now a matter of degree of transgression.
 
Granted, murder on, say, Fifth Avenue (where did that come from?) or elsewhere is an extreme standard.
So, on The Economist  suggested scale, how serious would any of these be, if supported with adequate evidence :
 
 
. Collusion/conspiracy with an adversarial foreign power to affect a U.S. presidential election.
 
. An extended pattern of obstruction of justice in the investigation of that alleged crime.
 
. Failure to execute laws passed by Congress (sanctions on Russia, etc.)
 
. Attacks on free press/free speech and the U.S. criminal justice community. 
 
. Emoluments enriching the president and/or his family.
 
 
To be sure, we are here immersed in "unsettled law". The Constitution is silent. But lawyers on both sides of the issue have not been reluctant to venture opinions. For more discussion of just how unsettled this is, see:
 
Independent counsel Kenneth Starr opinion in "Can the President Be indicted? A Long-Hidden Legal Memo Says Yes"  The New York Times, July 22, 2017.  
 
For a more nuanced analysis, see "The Only Way to Find Out if the President Can be Indicated" , The Atlantic, May 23, 2018 by Garrett Epps, Professor of Law at the University of Baltimore.
 
In the realm of political analysis, former federal prosecutor Renato Mariotti, has observed: "I would be surprised if Mueller indicted the president for the same prudential reasons that swayed Starr [from indicting President Clinton]. But the specter that he might do that could have an impact on things. If I were on the president's team, I would say, 'I don't think it's likely that he would, but it's possible' depending on what the facts are."
 
In any event, please, Trump legal counsel: Considering the President's many days of playing golf since inauguration and countless hours of "executive time" watching Fox News, don't tell us he's too busy to respond to an indictment of such great import.
 
Finally, if Judge Kavanaugh repeats his earlier opinion that a president can't be indicted, he will have provided a key insight as to his judicial philosophy and judgment -- and contributed to an historical American legal and political debate.
 

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