Sunday, April 28, 2024

The Latin Term Was Diktator

The diktator was a Roman office reserved for times of crisis. The diktator was given complete control in order to save the Empire. The only law that bound the office was to step down from it when the crisis had passed. Julius Caesar refused to; and the Caesar’s followed him, turning his name into the title of the singular ruler.

And Rome gave us the word for a despot; a “strong man,” a singular figure who would save the nation. A person above the law, who was the law.

And right now, the problem seems to be the 5 people who, in our Constitutional system and because of our acceptance of their claims to authority, are going to decide what the law is, and whether anyone can be “above it.”

As I said, Fitzgerald is their blueprint:
The President occupies a unique position in the constitutional scheme. Article II, § 1, of the Constitution provides that "[t]he executive Power shall be vested in a President of the United States. . . ." This grant of authority establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity. These include the enforcement of federal law -- it is the President who is charged constitutionally to "take Care that the Laws be faithfully executed"; the conduct of foreign affairs -- a realm in which the Court has recognized that "[i]t would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret" and management of the Executive Branch -- a task for which "imperative reasons requir[e] an unrestricted power [in the President] to remove the most important of his subordinates in their most important duties."
Some of the Justices seem to be looking for a way to extend that argument to cover criminal immunity.
Courts traditionally have recognized the President's constitutional responsibilities and status as factors counseling judicial deference and restraint.
In the wrong hands, you can see what that settled legal doctrine (it’s not controversial, nor invented by Fitzgerald) can be turned into.
It strains the meaning of the words used to say this places a President "above the law." United States v. Nixon, 418 U. S. 683 (1974). The dissents are wide of the mark to the extent that they imply that the Court today recognizes sweeping immunity for a President for all acts. The Court does no such thing. The immunity is limited to civil damages claims. Moreover, a President, like Members of Congress, judges, prosecutors, or congressional aides -- all having absolute immunity -- are not immune for acts outside official duties. Ante at 457 U. S. 753-755. Even the broad immunity of the Speech and Debate Clause has its limits.
Pretty much the blueprint, wouldn’t you say? And, as opposed to the Roman Senate of old, 5 unelected persons who have long ago declared the Constitution gives them their positions for life, and the final arbiter of what that Constitution says, could decide to appoint a diktator, if only in retrospect, and only to protect Trump. If Biden wins, Trump will likely be the last person to need it. If Trump wins, Biden will have immunity. But here is the final irony of resting criminal immunity on Fitzgerald:
a rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment. In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President's traditional concern for his historical stature.
The irony is that the case before the Court alleges Trump abused the office precisely because he didn’t win re-election, and he claims immunity because he’s seeking election again. And he’s singularly unconcerned with the prestige of the office (unless he holds it, and then he thinks he brings the prestige to the office), and his historic legacy (who is building his library? And where?).

But what a constitutional crisis seems to be set before the nation.

(Sorry to run through Fitzgerald again, but sometimes it takes me three times to figure out what I want to say.)
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