Letter: No one is above the law | VailDaily.com
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Letter: No one is above the law

The recent defense offered by the president’s legal team in the tax matter before the Second Judicial District that the president can commit a crime and not be subject to prosecution nor arrest is part of a theory propounded early on by a young Antonin Scalia to justify Dick Cheney’s actions while he was chief of staff to Gerald R. Ford and later by Edwin Meese, then-attorney general under Ronald Reagan, known as the unitary theory. The constitutionally heretical theory was roundly and soundly put down in two cases before the Supreme Court, Morrison v. Olson (1988) and Hamdan v. Rumsfeld (2006), in which decisions established precedents against any claim of imperial powers for the presidency.

In practice, the founders looked to the judicious use of presidential power to avoid actually testing whether the president could skirt the law. Until now. Since the current officeholder has shown a pattern all his life of pushing the boundaries of what he could and could not get away with, there now appears to be a new opportunity to slap him silly for thinking Americans would tolerate such a ceding of power. And yet, his supporters seem willing to embrace the heresy as justification. The founders were acutely aware of the English king’s abuses of their freedoms as well as colonial governors’ propensity to dissolve legislatures in the king’s name that got too full of themselves. In 1927, another ruling by the Supreme Court affirmed Congress’s oversight authority, especially with respect to the executive branch.  

The unitary theorists believe a president can only answer to the people in an election. But, it’s hard to imagine a moment in our history when a sitting president would have been more abusive in using the power of his office to cover up his alleged crimes and misdemeanors in pursuit of his personal political ambitions, especially with such a willing and sycophantic group as the Republican-controlled Senate, confident in its majority and in the unlikelihood of having to cede its own power to the will of the people. But stranger things have happened. It is a sad statement that such a situation is currently before us and for some of us, not entirely unexpected. 

There could be a silver lining in all this: clarification. While the outcome of the impeachment inquiries in the House is uncertain and speculation over Speaker Pelosi’s endgame is beyond this writer’s ability to judge, a day of reckoning is coming. It might come at the Tuesday, Nov. 3, 2020 general election, or it might come much sooner before the Supreme Court.  Either the theory will be upheld and a sad epoch in our nation’s history when our country flirted with a president who asserts the powers of a  dictator might be confirmed, or it could finally be debunked, in which case we would once again find justification and pride in thinking our founders wise men divinely inspired who understood the real strength of the American Experiment in government of the people, by the people and for the people is, indeed, firmly rooted in a system of checks and balances every school kid grew up to understand and appreciate. Those checks and balances included the three co-equal branches of our federal government, a free and independent press and power ultimately residing in the people, and not in corporations. 

Gus Nicholson

Denver and Avon


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