Above or Subject to?

At this precarious moment in our nation’s history, perhaps the biggest question facing us is whether anyone is above the law, or all are subject to it.

Supreme Court nominee Brett Kavanaugh, in previous writings and before the Senate committee considering his nomination, has made it quite clear that he believes that Presidents should be free from the distractions of investigations and indictments. He also believes that Presidents can pardon themselves. His reasoning apparently is that IF Congress wants to ‘deal with’ a rogue President, its only Constitutional remedy is simply impeachment for ‘high crimes or misdemeanors.’

Unfortunately, a lot has changed since the Constitution was written, and even without allowing for changes in what constitutes certain crimes and misdemeanors, Kavanaugh’s reasoning is sorely deficient in today’s world.

For example, if Congress was about to impeach and try a President for treason (like agreeing to go soft on Russia if they helped elect him in exchange) and that President then pardoned himself for his treasonous ways, could that President successfully deflect the impeachment?

In the light of his writings and testimony, it is hard to imagine today’s Supreme Court nominee sitting and ruling on that question.

The classic expression that ‘no one is above the law’ began somehow, sometime around the time of our Revolution when Americans wanted to get away from a royal king who WAS THE LAW and treated us accordingly.

While the precise ‘above or below the law’ language never found its way into the Constitution, it is deeply and inextricably embedded in all that it did say, and the many writings explaining and defending the Constitution that preceded its ratification.

The notion that a rogue President might pardon him/herself is so repugnant to our founding ideals that it is almost unbelievable that any American could or would tolerate it, regardless of politics.

There are a lot of reasons why Kavanaugh should NOT be confirmed but this one is dispositive.