An American president cannot be above the law

The Founding Fathers of this country disagreed on many things. But they agreed on one thing: the rulers of their new country could not be too powerful. They were angry at what they saw as the tyranny of King George III in ruling the empire he oversaw. So they sought to create a new country built on law, not on the whims of one ruler.

When it ruled late last month that US presidents have broad immunity for the actions of their officials while in office, the conservative majority of the US Supreme Court turned that fundamental principle on its head.

As Thomas Paine wrote in “Common Sense,” “In America the rule of law is king…in absolute governments the law is king, so in free countries the law should be king.”

Alexander Hamilton was more direct. “The President of the United States would be liable … to prosecution and punishment in the ordinary course of law. … In this delicate and important circumstance of personal responsibility, the President of the Confederate United States would stand on no better ground than a Governor of New York, and on worse ground than the Governors of Maryland and Delaware,” he wrote in “Federalist 69.”

It is clear that the Founding Fathers strongly believed that everyone, including presidents, was subject to the laws of the land, according to many constitutional law scholars.

“It was remarkable. There were so many issues that the Founding Fathers disagreed on, and this wasn’t one of them,” Holly Brewer, the Burke Professor of American History at the University of Maryland, told ABC News. She was one of 15 scholars who signed a letter to the court urging the justices to rule that presidents did not have broad immunity.

It is a confusing ruling for judges who often invoke their fidelity to the original intent of the Founders and a strict interpretation of their words.

It is also a dangerous decision as Donald Trump, who has long admired tyrannical leaders, is running for president again.

The case centers on Trump’s claims that he is immune from legal consequences for his involvement in efforts to overturn the results of the 2020 presidential election, including the violent attempts to stop the certification of those results at the U.S. Capitol on Jan. 6, 2021. The Supreme Court did not dismiss the four counts of election interference against Trump outright, instead sending the case back to a lower court. But the conservative majority’s ruling that presidents are largely immune from prosecution for their “official actions,” which the opinion did not define, seemingly gives presidents broad authority to act in unchecked and illegal ways.

Presidents, of course, need freedom to govern. For example, a chief executive and members of his cabinet can make decisions based on information available at the time, which later turns out to be incorrect. People can be harmed by this. If presidents are indicted or prosecuted in such situations, it can paralyze the government.

But when presidents act in bad faith, as Trump did when he tried to overturn the results of the 2020 election in a variety of ways, they should not be immune from legal consequences. If we weaken accountability for such behavior, we fear we will only encourage more of it.

That’s a big reason the court’s recent ruling is so troubling: It reinforces the worst impulses and actions of a man unbound by common standards of decency and civility. Trump’s behavior shows why guardrails should be strengthened, not torn down.

“Today’s decision to grant former presidents criminal immunity reforms the institution of the presidency. It parodies the principle, fundamental to our Constitution and system of government, that no one is above the law,” Justice Sonia Sotomayor wrote in a scathing dissent joined by Justices Elena Kagan and Ketanji Brown Jackson.

“Ultimately, this majority’s project will have disastrous consequences for the presidency and for our democracy,” Sotomayor added.

The Founders recognized that an American president, no president, should be above the law. The Supreme Court ruling, disturbingly, moves the country further away from that founding principle.

— The Bangor Daily News