(C) Freedom House
This story was originally published by Freedom House and is unaltered.
. . . . . . . . . .
In a Democracy, No One Is Above the Law. The US Supreme Court Has a Responsibility to Uphold this Principle [1]
[]
Date: 2024-07
With former president Donald Trump facing criminal charges in four separate federal and state cases, much has been said about the “unprecedented” nature of this moment: never before has a US president or former president been criminally indicted—even if a few came very close.
Trump’s supporters have seized on that novelty to portray the indictments as illegitimate, comparing them to the strong-arm tactics of dictators. In fact, criminal indictment of political leaders is relatively common among democracies: 43 percent of the countries rated Free in Freedom House’s Freedom in the World report have prosecuted current or former heads of state or government since 2000. This includes the leaders of fellow democracies like France, Israel, and Austria, who were either political candidates or in office at the time, according to our new analysis.
While such cases are always politically controversial, and carry risks, that has not stopped independent justice systems in many of the world’s freest countries from pursuing and managing cases credibly. Democracies can emerge stronger from such events by demonstrating to citizens that the rule of law applies to everyone, and that democratic institutions are working as intended. The United States has everything it needs to handle former president Trump’s court cases credibly and work within the system to determine his guilt or innocence. The Supreme Court, for its part, should uphold the fundamental democratic principle that no one is above the law.
Rising to the challenge
Can the United States, like many other democracies, fairly and credibly prosecute and try a former president and current presidential candidate? The signs point to yes.
America’s judicial independence, rule-of-law tradition, and constitutional protections for the accused are among its most deeply embedded strengths as a democracy. Its law enforcement authorities and courts have credibly handled hundreds of criminal charges against senior politicians from both major parties, irrespective of the political implications. They continue to do so, with the federal indictment and trial on corruption charges of Senator Robert Menendez, a powerful member of the Democratic Party, as a recent example.
The United States also has robust protections against the politicization of prosecutions—from constitutional due process protections and independent courts that serve as a crucial check on prosecutors, to independent grand juries that review and approve indictments, to federal and state standards that forbid prosecutors from charging, or failing to charge, a case based on its political implications.
In short, notwithstanding the inherent controversy surrounding the indictments against former president Trump, Americans have good reasons to trust that the US criminal justice system will manage them fairly and credibly.
But this trust need not be blind. Independent media and other analysts, acting in good faith, should scrutinize cases carefully and report objectively on how the potential for real or perceived political bias is being managed—noting institutional safeguards in place and ask probing questions about how they are working. In doing so, however, they should always bear in mind that the mere existence of political implications or consequences stemming from a case does not indicate an improper political motivation. To the contrary, if a democracy’s most senior political leaders were never subjected to legal scrutiny and accountability—as in an autocratic state like Russia or China—there would be far more reason to worry.
The dangers of immunity
Despite America’s institutional strengths, there remains ambiguity about the extent to which presidents enjoy immunity from criminal prosecution, if at all, for actions they take while in office. US Department of Justice policy prohibits prosecution of a sitting president, but that policy does not have the full force of law and remains subject to considerable constitutional debate. Lower courts recently ruled that any criminal immunity is lifted after a president leaves office, but the Supreme Court is currently considering an appeal on that question in the case of Trump v. United States, with a ruling due next month. Trump’s lawyers argue that former presidents enjoy absolute immunity from criminal prosecution for their official actions unless they have first been impeached and convicted by Congress.
The Supreme Court should reject such dangerous arguments and clarify that presidents are not above the law. The defense of this principle is crucial in any genuine democracy, and it is particularly vital when illegal abuses of power threaten the democratic order itself. Given the facts of the current case, which centers on a former president’s alleged involvement in a months-long effort to interrupt the peaceful transfer of power after a free and fair presidential election, the stakes could scarcely be higher.
However the details of the case might play out at an eventual trial, with all the rights and due process protections the former president will be afforded, to quash the matter entirely by granting immunity from prosecution would do severe damage to both the rule of law and the integrity of elections in the United States. It would signal that future presidents may freely commit crimes while in office so long as they have enough allies in Congress to block accountability through impeachment. It would also deal a major blow to US-led efforts to counter authoritarianism around the world, as a group of retired military generals and senior defense officials argued in an amicus brief.
Thankfully, despite the country’s deep political polarization, Americans support the principle that no one is above the law. In a recent national poll, 70 percent of respondents said they do not believe that US presidents should be immune from prosecution for crimes they allegedly committed while in office. Even as they vehemently disagree over who their next president should be, Americans are overwhelmingly in agreement about presidential immunity, and they are counting on the Supreme Court to ensure that any president who engages in criminal behavior can be brought to justice.
[END]
---
[1] Url:
https://freedomhouse.org/article/democracy-no-one-above-law-us-supreme-court-has-responsibility-uphold-principle
Published and (C) by Freedom House
Content appears here under this condition or license: Creative Commons.
via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/freedomhouse/
