In plain language a third-grader could understand, the Constitution says that an ex-President can be prosecuted for treason, bribery or other crimes committed while in office. Everybody knew that for 235 years. Mitch McConnell knew it when he said Trump could be prosecuted later. Even Trump said it, through his lawyers, at his impeachment trial. Now the Supreme Court says he cannot.
The Constitution: “The President, Vice President [and others] shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors … but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” (Bribery can only be committed while in office; but plenty of “other crimes” can be, too).
The Court: An ex-President cannot be prosecuted for bribery for “official acts” while in office, if done under “core” functions assigned to him by the Constitution, such as pardons, or vetoing a law passed by Congress. His motivations for such acts cannot even be looked into, making a prosecution for bribery impossible. On that premise, he could not be prosecuted for taking a million-dollar bribe in exchange for issuing a pardon, or a billion dollars from the oil industry for vetoing a law passed by Congress, which are functions assigned to him by the Constitution. In addition and on a similar premise, the President can conspire with the Attorney General to commit all sorts of crimes because, by statute, Congress has created the Justice Department and the office of AG as part of the executive branch, so anything he does with them is also an “official act” within functions assigned to him by law, under the Constitution. And so on, subject only to a vague exception with such a high bar that it would likely never pass muster before this court, which would be inevitably called upon to approve it. And the exception does not even apply to “core” official acts. The immunity there is absolute.
The Constitution says no such thing, so where do such conclusions come from?
It all comes down to this from the court: “The nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office.”
That, and a lot of sophistry, in the form of reasoning upon that premise, that would take too long to dissect here, but which, as a retired lawyer, I can say gives lawyers and law a bad name, and makes a mockery of the words chiseled above the Supreme Court’s entrance: “Equal Justice Under Law.” Not so any more. The President is now above the law. “The King can do no wrong.”
This ruling is not a statement of what the Constitution says or even implies. It is a political statement, a judgment of what six justices think it should have said. It re-writes and amends the Constitution as it stood for 235 years, without the consent of the American people required for such amendments.
An extremist wing of the Supreme Court has not performed its true function of interpreting the Constitution. Instead, it has written a new one. More simply put, they made it up, something that is clearly not in the Constitution — in fact opposed to what is expressly in it: the President is free to commit whatever crimes he wants.
And we have someone who has proved he will do exactly that, in a pre-announced program to work his will in all its worst desires. And, if not him because he is not elected, someone else in the future inevitably will.
“Absolute power corrupts absolutely.”
That is a plain prescription for the end of democracy.
The decision is one of constitutional character, now baked into the Constitution. So no law of Congress can change it; Congress is powerless here. Only a constitutional amendment can remedy this, which requires the approval of 38 states. No state, of whatever political persuasion, can justifiably oppose what restores a universal reading since the country’s founding. It is a difficult path and a long one. But that is the only way out of this, and it must begin now.
I call upon my senators, Dick Durbin and Tammy Duckworth, and upon my representative, Danny Davis, to immediately introduce resolutions proposing such an amendment.
Frank Stachyra is an Oak Park resident.