President is above the law, Supreme Court claims
In 2019, a Trump attorney argued before a New York judge that the president is above the law.
The attorney was the late William Consovoy, who I wrote about here because he also had been hired by the Dunleavy administration for $600 an hour to pursue an anti-union crusade.
Here is the exchange Consovoy had with a federal judge who asked about Trump’s famous claim, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters,” and whether Trump could be prosecuted for murder.
JUDGE DENNY CHIN, SECOND CIRCUIT COURT OF APPEALS: What's your view on the Fifth Avenue example? Local authorities couldn't investigate? They couldn't do anything about it?
WILLIAM CONSOVOY, TRUMP ATTORNEY: I think once a president is removed from office, any local authority -- this is not a permanent immunity.
CHIN: Well, I'm talking about while in office.
CONSOVOY: No.
CHIN: That's the hypo. (hypothetical) Nothing could be done? That's your position?
CONSOVOY: That is correct.
According to Consovoy’s thinking, Trump could go on a crime spree and stay immune, for as long as he remained in the White House. Consovoy was a former law clerk for Justice Clarence Thomas.
It turns out that Consovoy, who died in 2023 at 48, could have invented a story that the Fifth Avenue shooting was somehow an official act of the president and Trump would be immune both during and after his presidency.
The decision by the Republicans on the U.S. Supreme Court today expands on Consovoy’s radical claim in saying the president is above the law, expanding the concept of presidential immunity.
The majority members claim that the president is not above the law, except for “official acts,” a vague term that puts the president above the law for all practical purposes. The justices didn’t mention killing someone on Fifth Avenue, but in the real world the chance to conceal a crime by claiming it is an official act, is now wide open.
As Justice Sonia Sotomayor wrote in opposition to the majority: “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
“With fear for our democracy, I dissent,” she said.
In her dissent, Justice Ketjanji Jackson wrote in a footnote about the oddity of defining the limits of immunity under the decision.
“While the President may have the authority to decide to remove the attorney general, for example, the question here is whether the president has the option to remove the Attorney General by, say, poisoning him to death,” Jackson wrote. “Put another way, the issue here is not whether the president has exclusive removal power, but whether a generally applicable criminal law prohibiting murder can restrict how the president exercises that authority.”
This is the conclusion of Justice Sotomayor’s dissent to the Supreme Court decision on presidential immunity.