CONSTITUTIONAL INTERPRETATIONS

On January 6, 2021, hundreds if not thousands of protestors violently invaded the United States Capitol building in violation of the law, in an effort to prevent Congress from counting Electoral Votes cast in 2020 Presidential Election, and from certifying the winner of that election. Since then, substantial evidence has emerged indicating that then-President Donald J. Trump was complicit in the protestors’ illegal effort. See, for example, Bob Woodward and Robert Costa, Peril, Simon & Schuster (2021). Eventually, a federal grand jury indicted former President Trump, charging him with violating a federal statute that makes it a federal crime for anyone to “corruptly . . . obstruct . . . influence . . . or impede . . . any official proceeding, or attempt . . . to do so . . . .” 18 U.S. Code Section 1512(c)(2). Specifically, the indictment charged former President Trump with 1) verbally encouraging Vice-President Michael Pence to prevent the counting of all of the Electoral Votes that Mr. Pence had received as the official President of the Senate, and then 2) publicly criticizing Mr. Pence for his refusal to do so, all the while the protestors themselves were listening to Mr. Trump inside the Capitol.    

Later, in 2024, before any of the indictment’s charges had been tried, the United States Supreme Court declared Trump, as a former President, to have a presumptive “immunity” from those charges, under Article II, Section 1 of the United States Constitution. See Trump v. United States, United States Supreme Court Reporter, 144 S.Ct. 2312 (2024). The Court gave the federal prosecutor a short opportunity to rebut that presumption with legal arguments in the trial court, but that opportunity was lost when Trump won the 2024 Presidential Election just a few weeks later. The United States Department of Justice, which works under the sole authority of the President, has a longstanding policy of not prosecuting its boss, the sitting President.

The Supreme Court clearly exceeded its authority by granting former President Trump a presumption of immunity. Contrary to the Court’s majority Opinion, the federal Constitution neither grants, nor implies any “immunity” from criminal prosecution to former Presidents. Article II, Section 1, the only provision of the Constitution that the Court relied upon, simply reads “The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years . . . .” Mr. Trump’s first “four Years” expired on January 21, 2021.

The Court’s grotesque effort to rewrite the United States Constitution cannot be fixed by mere legislation denouncing Presidential “immunity.” The Constitution, whether rightly or wrongly interpreted by the United States Supreme Court, outranks any inconsistent legislation passed by Congress.

Hope for the restoration of the Rule of Constitutional Law still lies in the prospect of the Court’s overruling of Trump v. United States. The caselaw created by the Court’s decision in that case should be declared “void” as a law “repugnant to the constitution.” Marbury v. Madison, 5 U.S. Reports 137, 180 (1803).

/s/ Dan D. Rhea