User:SM5POR/Law

Constitution

Separation of powers

Executive

From Once Out Of Office, Trump Faces Significant Legal Jeopardy, NPR, November 20, 2020:

For one, prosecuting a former president would be politically fraught, particularly in a country as divided as this one. The decision on whether to do so at the federal level will fall to the new administration.

Indeed it will be politically fraught. So why is it done this way in the first place?

In a democratic republic, the office of the president, and by extension the administration, is political by definition. Any decision by that administration can, and probably will, be interpreted in a political context. Likewise with any decision by the Attorney General, if the Attorney General is appointed by the administration on political merits. So why does the incoming administration insist on appointing a new Attorney General, as if the predecessor is routinely found unfit for that office? Is it because the incoming administration wants every federal case to carry its political signature, or is the administration bound by law to paint the office of the Attorney General, and any other federal administrative office, in its own political colour?

The two chambers of the United States legislature, the House of Representatives and the Senate, quite often differ in which political party ends up winning the majority, and few observers seem to question the resulting complexities of getting any new legislation adopted by a politically divided Congress. So why couldn't a Republican (or politically unaffiliated) public prosecutor continue to serve under a Democratic president, or vice versa? Is the chef at State dinners also politically appointed? What about Guards of Honour, Secret Service agents (oops, see below), gardeners, janitors, or electricians?

(Post-riot moment of reflection, come January 2021: Yes, why would a clean sweep ever be necessary? It's not like you actually suspect some rouge agents to be conveniently left in place by the outgoing, out-kicking and out-screaming administration, as if they were planning some kind of coup d'etat, do you? Ok, ok, so maybe hiring new Secret Service agents might be a reasonable precaution since they are directly responsible for the protection of the life of the President, unlike the White House chef who merely prepares his meals...)

The NPR article continues (quoting a former federal prosecutor):

"And the understanding is President-elect Biden has already signalled he doesn't have an appetite for that, which makes sense given he has a lot of political capital that needs to be used on critical issues like the pandemic, like climate change, like the economy."

Whether or not everyone should be equal under the law thus becomes a political issue, to be decided on a case-by-case basis by the current head of government, eager to please an angry mob threatening to vote him or her out of office for taking the presidential oath seriously and, in effect, upholding the constitution. And this is all fine and dandy?

Biden has indeed signalled his reluctance to pursue a case against his predecessor. In August, Biden said he'd leave the decision to the Justice Department and the attorney general, but he suggested pursuing charges might do more damage than good.

When you are sitting on someone's paycheck, the difference between making a suggestion and giving a direct order to that person is razor-thin.

"I think it is a very, very unusual thing and probably not very — how can I say it? — good for democracy to be talking about prosecuting former presidents," Biden said.

In a democracy, a legislative assembly is elected by popular vote to write the laws, including the laws of criminal procedure. Then the voters elect someone to arbitrarily apply this law against anyone with too little influence to be concerned about in the next election. Who is this guy, Judge Dredd?

There's also the possibility that Trump could attempt to pardon himself before leaving office. The president has asserted he has that power but said in the past he didn't feel he needed to use it because he argues he hasn't broken any law.

Whether any law has been broken is for the court to decide, not the defendant, right? And what was the verdict? None, because nobody has been charged with a crime yet?

Separation of powers, indeed.

Judiciary

Special master

Considering recent events (2022-09-07), I'd argue that the Federalist Society is the judicial equivalent of a computer virus nursery, intentionally set up to penetrate the perimeter defense of the United States court system, planting a botnet of obedient drones and loose cannons all over the place until such time that they can be activated to do their master's bidding (say, by appointing a Special master to review the collection of government records at the National Archives in case they happen to include some private and confidential groceries shopping list) at the press of a button.