(He) fought the law and the law won
In the debate over Presidential immunity from criminal prosecution, both sides present the issues as unprecedented.
They are not.
Charles I of England thought he had immunity: since he ruled by divine right, he was above all secular laws. Parliament disagreed, and there was a civil war. Charles lost – badly enough to be beheaded.
The idea of constitutional democracy took a few further decades to come into full application in England. But the Americans transformed an element of its essence – that the people have power over the ruler, monarch or executive, through a representative government – into “We the people”. It is the essence of American democracy that no one is above the law.
The applicability of a nation’s laws to that nation’s ruler is a key element of constitutional democracy.
In assessing Trump’s immunity claim, Judge LeCraft nailed it: “I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law.”
Some argue that rulers require immunity from any criminal prosecution, lest they be subject to political retribution through criminal prosecution after they leave office. There is indeed that risk, as the former President now faces. But an appeal to executive expediency would allow political assassination and/or rule by decree: indeed all manner of anti-democratic activities.
I believe that the current debate is of identical importance to that 375 years ago.
Although the debate is of paramount constitutional importance, it is nonetheless political: necessarily so. 375 years ago it was cavaliers versus roundheads; now it’s Republicans versus Democrats. While violence has thus far been avoided, the current immunity debate arises in the context of criminal charges for election interference.
Perhaps it is not surprising that such a debate – once thought long settled – should return again. Democratic countries create constitutions to protect against absolute monarchs and dictators, but that does not mean that dictatorial ambitions never arise. What is particularly worrisome is the extent to which people have responded favourably to the possibility of more authoritarian rule.
What has failed in our democracy is another topic.