InternationalVOLUME 19 ISSUE # 34

The rule of law is made to be broken

It was a good day for Donald Trump, the former United States president and current Republican presidential hopeful, who is waging a forever war to “make America great again”. The first former US head of state to be criminally prosecuted and convicted of a crime, Trump was indicted by a federal grand jury in 2023 for conspiring to overturn the 2020 election results that produced the Democratic presidency of Joe Biden.

But the US Supreme Court, which has a conservative supermajority, has now conveniently ruled 6-3 that presidents are essentially above the law – in a decision that is unprecedented in the nation’s 248 years of existence. The text of the ruling states: “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.”

So much for checks and balances and all that good stuff. The ruling goes on to specify that, while a former president is “entitled to at least presumptive immunity from prosecution for all his official acts”, there is “no immunity for unofficial acts”. But in distinguishing between “official” and “unofficial” acts, where the hell does one draw the line?

As it turns out, the Supreme Court doesn’t really know either. Several pages down in the ruling, we find the ostensible lead-up to an explanation: “When the President acts pursuant to ‘constitutional and statutory authority,’ he takes official action to perform the functions of his office. … Determining whether an action is covered by immunity thus begins with assessing the President’s authority to take that action.”

So far so good. But then some confusion arises because “the breadth of the president’s ‘discretionary responsibilities’ under the Constitution and laws of the United States frequently makes it ‘difficult to determine which of [his] innumerable “functions” encompassed a particular action’”.

In other words, because the president is the president, any of his actions can at least to some extent be construed as official. The ruling concludes: “The immunity the Court has recognised therefore extends to the ‘outer perimeter’ of the President’s official responsibilities, covering actions so long as they are ‘not manifestly or palpably beyond [his] authority’”.

Never mind that if you abolish the rule of law, the “outer perimeter” of authority is not exactly, um, palpable. But never fear, the presidential carte blanche for the abuse of power is not a partisan affair, and the Supreme Court has provided the handy reassurance that “immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party”.

Sonia Sotomayor, one of the Supreme Court’s three dissenting justices, decried the implications of the decision and the dangerous leeway it gives any future US head of state: “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organises a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

For his part, Trump – who himself appointed three of the justices who made the decision possible – promptly took to social media to flaunt his pathological attachment to capital letters: “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN.”

Of course, there is nothing fundamentally democratic about a corrupt and racist plutocracy under which elite tyranny is fortified by a Supreme Court backed by dark money and committed to the systematic dismantling of basic rights. But, hey, that’s what makes America “great”. Anyway, US presidents have long been above international law. It’s only fair they should be above domestic law, as well, right?

To date, not a single US head of state, Republican or Democrat, has been officially held to account for inflicting mass slaughter in various locations across the globe or for implementing coercive economic measures that qualify as a deadly violation of international law in themselves. According to the Washington-based Center for Economic and Policy Research, US sanctions on Venezuela caused more than 40,000 deaths in the country from 2017 to 2018 alone – the first year of Trump’s presidency.

Or rewind the clock to President Bill Clinton’s reign in 1996 when US Ambassador to the United Nations Madeleine Albright offered an optimistic cost-benefit analysis of the estimate that half a million Iraqi children had thus far been killed by US sanctions: “We think the price is worth it.” Now, as the Supreme Court continues to push the “outer perimeter” of any remaining pretences to US democratic integrity, that old saying about rules comes to mind. And as things currently stand, it seems the rule of law, too, was made to be broken.