I've tried to avoid writing about current events, but this week we encounter a convergence of events too ripe to ignore!
On Monday the Supreme Court ruled, in Trump V United States (God, that's an incredible name for a real court case!) that American Presidents are given a hefty amount of criminal immunity for some of their actions during office after they leave office. Thursday was July 4th, Independence Day. While American independence was largely about a desire for the representative government which English subjects in England had had for centuries, it is now remembered as an ideological battle against monarchy. A monarch, of course, has a lot of immunity for their actions. And because they rarely leave without dying, post-reign prosecution is impractical. On top of all that, our text this week has a lot to say about the duty to act against a leader sho is doing the wrong thing, something which is difficult to do when that leader has immunity.
This week we read a double portion, "The Pyre of Denethor" and "The Houses of Healing." We'll be looking at the first of those chapters.
Previously, Denethor has taken Faramir's body to an underground area called Rath Dinen, where previous kings and stewards had been buried. Denethor, convinced Gondor is going to lose the war, has decided to hurry his and Faramir's entombment. Most of his guards assist him, but Pippin has fled to get Gandalf for help. Pippin has by this time been been released from Denethor's service - it's not clear what he would have done if he were still bound to him, and it would be too easy to say he would have done the same.
But on his way to find Gandalf he finds his friend, Beregond, another member of the Guard. He tells him Denethor has lost his mind, and urges him to do what he can to delay what's about to happen. Beregond is uncertain what to do - it would be disloyal for him to leave his post.
That's where we last left our characters. This week Gandalf and Pippin return to find Beregond has in fact acted. He killed one guard to get inside and now stands in front of the door where Denethor and Faramir are, trying to hold off two other guards who are trying to get in with the torches Denethor ordered them to retrieve. As they arrive, Denethor opens the door from behind Beregond, bearing his sword. Gandalf sets himself in the middle of everybody and orders Denethor to stop what he's doing.
said Denethor. ‘Or may I not command my own servants?’
when it is turned to madness and evil.'
Gandalf then goes to the platform Faramir has been laid on (it is made of sticks, and he has been covered in oil) and picks him up and bears him away. In response, Denethor snatches one of the torches brought by his guards, throws it on the platform, and lies down to burn. He dies right then and there.
Gandalf turns to the loyal guards, who are horror-stricken at what's happened,
'You have been caught in a net of
warring duties that you did not weave.
But think, you servants of the
Lord, blind in your obedience, that but
for the treason of Beregond
Faramir, Captain of the
White Tower, would now also be burned.'
Gandalf clearly uses the word treason ironically - it is not a stain on Beregond's reputation, but an honor.
The application to our current events is obvious - Denethor should have been stopped, and much earlier. If he had survived, he should have been able to be tried for his actions. Treason against a mad lord is sometimes justified. Nobody is perfect, thus we must retain options to rebuke them.
But I do have complicated feelings about this ruling. Given my interest in foreign policy and geopolitics, which are much more amoral than domestic issues, I do think Presidents should be immune from some prosecution. My issue isn't so much "A President should be able to do what they want, without consequence," but that "if a President thinks they'll be punished, they now have a new cost to consider, and may act in their own interest instead of the nation's" I think a lack of immunity does introduce a level of hesitation which may have severe consequences.
The main example I can think of is Obama's attack on bin Laden. If that raid had gone poorly, with more civilian casualties, could he be prosecuted for their deaths? If bin Laden had, in fact, not been there, could he be prosecuted for sending Americans into harm's way needlessly? If those costs needed to be considered would he still have given the order? It was 2011, he still had another term to win. Failure, of course, could have been used against him in the 2012 election, and the success of that operation no doubt was a feather in his cap during that campaign. But what if losing that election also could have led to him being tried in court, personally? He might have acted differently. He might have taken longer to weigh his options, and thus missed the opportunity. If he missed the opportunity, could he have been tried for not acting?
I don't think a President should be personally liable for military action (or inaction). I don't think it's a good idea, per se, and I think it would come with lots of other negative consequences.
And there are many more laws than we usually think about. There are laws about how money gets spent. Can a President be prosecuted for overspending, or understanding? Or for reappropriating? I'm sure there are also many more examples I cannot fathom, but which the Supreme Court know well. While I obviously think our President should follow the law during their time in office, I don't think they should be punished for every example of law-breaking, because then it will be in our Presidents' interest to do as little as possible. Moreover, the kinds of people who will want to become President will change, and I don't think a litigious, self-protective person will necessarily make a good President. Immunity should be available, at least as long as some amount of good-faith exists. But then how do we prove that?
But there's another issue with holding a President accountable for crimes they commit in office. The president doesn't do most of what they are responsible for. Obama wasn't there when bin Laden was killed. He didn't pull the trigger. Similarly, Bush didn't lie to the UN about Iraq's weapons of mass destruction - Colin Powell did. Trump, also, didn't try to steal the election - his followers did. He didn't storm the capitol on January 6th. He didn't organize fake electors. How can we hold him responsible, legally, for what his followers did? They all had agency, and he had no way to compel them to act if they didn't want to do those things.
To wit: Trump did call the Georgia governor and demand he "find 11,780 votes" and suggested not investigating would be a criminal offense. When he refused Trump didn't do anything about it and nothing came of that threat. It's grotesque, but I don't think it's actually illegal to tell somebody to commit a crime. The threat is more within the realm of criminality, but Trump has a reputation of overblown rhetoric that I think he could reasonably get off if that was the only charge.
If the President, personally, shoots someone on 5th Avenue maybe they actually are immune to prosecution. If they order someone else to do that, that's still illegal for that person. Presidential immunity is not transferrable to their staff or followers. The FBI still has to follow the law - the President is immune from prosecution, not the whole executive branch. The American military also can't perform operations within the borders of America, though a declaration of martial law may change that. The National Guard is a separate issue I don't know enough about. I'd look it up, but this post is running along already. Suffice to say I believe it would be illegal for any branch of the military to conduct any operations on American soil without some extraordinary legislation passing Congress, and then Presidential immunity is not longer the sole issue.
Most of what we are worried about Trump doing involves someone else doing it for Trump. That person is not immune. They could obviously be pardoned, though, if convicted federally, but of course there's the more immediate worry they'd have of someone attacking them in the moment. If you shoot someone on 5th Avenue the promise of a Presidential pardon provides no protection NYPD's inevitable response.
The case for accountability is easier to make. There should be limits on power, and enforcement of those limits. But I do think the Supreme Court has a valid point that we don't want incoming Presidents to prosecute outgoing ones (and we certainly don't want them to campaign on that). We also don't want Presidents to be overly concerned with their own legal jeopardy when making decisions. Presidents who know going into the job that they must act in ways to protect themselves from even the most inane prosecution will not be the best kind of Presidents they can be - and those who choose to run will not be the best we can get.
We've had generations of Presidents who could be held accountable and we haven't devolved into dueling partisan trials. I disagree with the Court we were on the cusp of that. But I understand what they were trying to avoid.
The good news I'll say here is a President can still be impeached. We should try to elect legislators that represent their state/district rather than to support/oppose the President according to their party affiliation. But that's not going to happen just because those reading this blog decide to do so. It must be a national, cultural change in how we understand the legislative branch, that their job is to not pass laws which the President can tout as achievements, or bring forward messaging bills when they're in the minority, but to represent the interests of their constituents.
I originally was going to write "Denethor benefited from his immunity," but he died on a pyre of his own making (Well, to drive the point home, his guards made it). It is difficult to see that as a benefit. Denethor would have benefited more from listening to the doubts of others, and to being open to their concerns over his own. Denethor had the opportunity, but he didn't take it. Then again, he lived his life above the rest of the people, and surely began to believe his position as Steward was deserved through merit, and not through bloodline. He was the product of generational immunity - we shouldn't be surprised he couldn't simply shake it off.
Our future Presidents, as time goes on, will test the boundaries of this immunity more and more. To be clear, I am not talking about Trump. While he is a unique threat to our Republic, I think the real problems of this ruling will show themselves in 30-50 years, when we have a generation of Presidential hopefuls who grew up both wanting to be President and knowing Presidents have this kind of immunity. When they cross a line - for surely there are lines - we must hold them to account. However, that may set off the war of dueling partisan prosecutions this ruling sought to avoid. I have no solution to that - to any of this. But thank you for giving me an opportunity to talk out my thoughts.
Our text is clear - power is bad. If so, unaccountable power must be worse.
This had been a patreon-supported project, but that proved too annoying to maintain. If you would like to financially support this project, drop $1.11 (or any amount, I suppose) into my Venmo!
No comments:
Post a Comment