"The Constitution does not shield a former President from answering for criminal and treasonous acts"

After the American Century

The Supreme Court has ruled that the President of the United States cannot be held legally accountable for his actions as head of the government. This is an absurdity in a democratic nation, but more to the point, it violates the intentions of the founding fathers of the United States. The fought a Revolution to escape from the rule of the King of England, and they had no desire to make the president a replacement monarch.

But this week. the Court decided that presidential immunity applies to all official acts of the president, including acts that discredit and interfere with elections, as well as actions that encourage mob violence against Congress.  I urge everyone to read the decision in its tortured and incompetent reasoning, but here are the main points, as summarized by the justices themselves: 

A federal grand jury indicted former President Donald J. Trump on four counts for conduct that occurred during his Presidency following the November 2020 election.  The indictment alleged that after losing that election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results.  Trump moved to dismiss the indictment based on Presidential immunity, arguing that a President has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities, and that the indictment’s allegations fell within the core of his official duties.  The District Court denied Trump’s motion to dismiss, holding that former Presidents do not possess federal criminal immunity for any acts.  The D. C. Circuit affirmed.  Both the District Court and the D. C. Circuit declined to decide whether the indicted conduct involved official acts. 

Held: Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.  And he is entitled to at least presumptive immunity from prosecution for all his official acts.  There is no immunity for unofficial acts.

On the following page: "The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority."

This is rank treason. The Supreme Court's decision suberts and undermines the Constitution, giving unlimited power to the chief executive, making him immune from the checks and balances envisioned by the architects of the federal government. Given this decision, neither Congress nor the Courts have any power to prevent crimes by the cheif executive. They have left a gaping hole in their decision, failing to define what are official acts as distinguihsed from unoffical acts. The specific case involves an attack on Congress on January 6th, 2021.  Can a mob attack Congress, encouraged by the president in a speech immediately before it occurred,  and these proceedings be considered an official act? Apparently, the justices think so. The six justices who made this decision have lost credibility. They have severely undermined the reputation of the Court. They have created legal sanctions for dictatorship. 

The majority who made this decision have also discredited their own institutiont. Why should anyone respect their opinions in the future? There is a bit of satisfaction in knowing that the six justices who signed the decision have inscribed their names in history as incompetents who failed in their duty to uphold the Constitution. They will be reviled forever by historians and legal scholars, and Chief Justice Roberts in particular will go down as the worst head of the Court since it began. If the nation survives his tenure, it will be no thanks to him.

In contrast. history will honor the three dissenting justices.

"JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and JUSTICE JACKSON join, dissenting. 

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency.  It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President. . .  the Court gives former President Trump all the immunity he asked for and more.  Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent."

Five Proposed Amendments to the Constitution of the United States

After the American Century

The conduct of the Trump presidency has revealed the need for amendments to the US Constitution. The precise wording will require some fine-tuning, but here are my suggestions.

(1) The prompt and orderly transfer of power after an election being a paramount necessity for the preservation of public order and the practice of diplomacy with foreign governments, the declaration of who has won a presidential election shall not rest in the hands of the incumbent president, nor in those of a person appointed by that chief executive. Rather, the Chief Justice of the Supreme Court shall determine who has prevailed in the contest, and thereafter the successful candidate shall immediately have access to all the information necessary to prepare to take office, together with office space, a budget to pay the transition staff, and all other forms of assistance that can reasonably be necessary.

(2) If a president chooses to replace any member of the cabinet, a new appointee must appear within 60 days before the Senate to be examined and evaluated. In the meantime, an acting secretary may be appointed, but this person must already be a member of that department of government, and he or she cannot be a candidate for the position. An Acting Secretary shall always be identified by that title and cannot use the title of Secretary during the temporary period of his or her appointment.

(3) To ensure fairness and minimize outside interference in cases of impeachment that concern any person in the Executive Branch, in such cases the Department of Justice's investigation shall be funded and overseen not by the president but by the Chief Justice of the Supreme Court. 

(4) On the use of the presidential pardon. The President  cannot pardon himself nor members of his or her family, nor use the power of the pardon in cases that involve treason, espionage or tampering with an election, nor may the president pardon persons who worked for his or her political campaign or on the White House staff. 

(5) Trust in the electoral system being essential to any democracy, no candidate for federal office shall claim that an election was not properly conducted, "stolen," or otherwise compromised except when such statements are made in writing and under oath before a federal judge, together with substantiating evidence of the charges made. False or misleading statements about election officials or about the conduct of an election must be investigated by the Department of Justice and are subject to prosecution under the laws of perjury and slander. 

Is there Civil Religion in European nations to the same degree as in the United States?

After the American Century                                                                                                                                                        

I asked my students today whether civil religion was common to all societies, and in particular whether Denmark had a civil religion. For those not familiar with the term, the idea of civil religion can be traced back to at least the eighteenth century, but it came to prominence because of an essay written by Robert Bellah in the late 1960s. Bellah argued through many excellent examples that the United States, lacking the social glue provided to many societies by a shared religion, had developed a patriotic civil religion instead. 

Singing the National anthem at a baseball game

The Constitution specifically prohibits establishment of a national church, and the Bill of Rights makes illegal the creation of any law restricting religious freedom, including any attempts to establish religious requirements in order to hold or be elected to an office. Such restrictions were not unusual in the eighteenth century, where Protestants were often excluded from certain positions in Catholic countries, and Catholics excluded from some offices in Protestant states. 

As Bellah pointed out, in the United States in major speeches the President frequently refers to the Deity, but it is always a generalized God, not one tied to a particular religion. The Constitution makes no reference to Christ, for example, and this was quite intentional. The new United States made a point of the separation of church and state.  In contrast, most European nations did have a state church, and many also had a royal family that was baptised, confirmed, married, and buried in that national church. The royal families and their churches staged rituals that ensured continuity of society, in most cases playing a role that became less overtly political over time, as the monarchies tended to become symbolic points of unity rather than wielding power in government itself.

The United States, with no royals, no national church, and also without a long historical tradition, had to create alternative rallying points, and gradually did so, by inventing holidays (Thanksgiving, President's Day, Memorial Day. the Fourth of July, Labor Day, Columbus Day, etc.) by establishing patriotic sites (such as Arlington Cemetery, the Lincoln Memorial, Bunker Hill, or Mt. Rushmore), and through the repetition of certain rituals, not least the ritual of swearing in the president every four years.  The US also has "sacred" documents in shrine-like locations, notably the Declaration of Independence and the Constitution, displayed at the National Archives in Washington.  

Indeed, Americans have also consecrated some natural sites as national symbols, notably the Grand Canyon, Yosemite, and Niagara Falls. The sublime in America often became a patriotic emotion, and was also linked to technological achievements that seemed to represent the greatness of the nation, embodied in great railroad lines, skyscrapers, enormous factories, and NASA's space program.

My students had read Bellah and discussed these matters, but most of them concluded that Denmark, had no real equivalent to American civil religion. They thought their country far less patriotic than the US, but I wonder if that is entirely correct. Lacking a civil religion (if indeed this is the case) is not the same thing as not being patriotic. However, several of the students said they were not interested in the Danish royal family or the Danish Lutheran Church. Point taken. But it does seem to me that Denmark is bound together rather tightly by a long history and a great many traditions. Alternately, several students spoke of the intense nationalism that erupted after the Danish football team won the national championship in 1992. Huge crowds spontaneously filled the city centers in a general euphoria.

Two British students in the class thought that their society did embrace the monarchy more than in Denmark, and that there was a Civil Religion there. Just think of the last night of the Proms when a delirious crowd sings "Land of Hope and Glory", while millions of their countrymen watch on the telly.  

The discussion is not over, for this was only the first of three seminar sessions on civil religion.

Myopia Inside the Beltway

After the American Century

There is a myopia inside the Beltway around Washington, which leads people to misjudge the importance of issues. The most recent example is the controversy about whether the CIA properly briefed Nancy Pelosi or not back in 2002, about their use of torture. In the twisted logic of Washington and its journalists, the BIG QUESTION now is whether or not Pelosi knew about the torture. This is about as absurd as US politics gets, since the Democrats were not in control of Congress at the time, and since anyone who has attended meetings knows, it is possible to slip all kinds of things into a meeting in such a way that their true import is lost in the shuffle.

The real issues, of course, is not how much the CIA told opposition leaders in 2002. Rather, it is that the CIA, at the urging of Dick Cheney and George W. Bush, pursued a policy of torture that contravenes the American Constitution. For those who have forgotten, the Bill of Rights prohibts "cruel and unusual punishments." Thomas Jefferson would not have approved of waterboarding.

Also note that Amendment 5 declares that no person "shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law." This is not a point of debate, it is the law. Bush, Cheney, and the CIA broke that law, repeatedly. Quite literally the whole world knows about the torture and it has severely damaged the reputation of the United States. The election of Barack Obama was in part a repudiation of the policy of torture and a demand for a return to the rule of law.

Of course it would be convenient for the Republicans to just move on and try to forget these illegalities. This being difficult, if not impossible, they are now trying to implicate Nancy Pelosi in their own crimes. The Republicans would like to spread the guilt around and divide the Democrats. To some extent this seems to be working, and now Obama's appointment as head of the CIA is disputing with Pelosi about what she knew and when. This is all beside the point. Pelosi did not initiate the torture policy, nor did she have the power to stop it, nor could she have revealed CIA secret briefings to the press, especially in the nervous year after the 9/11 attacks.

The Bush Administration remains responsible for the introduction and the use of torture, a barbaric practice that not only is illegal, but that produces "confessions" of dubious value. Recall that during the Counter Reformation the Inquisition also used torture, in a holy cause of course, and dragged amazing revelations out of its victims: they were in league with the devil, practiced witchcraft, communed with evil spirits, and committed all manner of foul deeds. Torture a man enough and he may confess to almost anything.

The whole Pelosi affair would just be silly, if the Obama Administration had no important legislation to pass.