Believe it or not, the Constitution appears to demand that even a convicted murderer elected President must have their charges dismissed, otherwise the fate of the free world is in the hands of a single judge and twelve members of a jury that are necessarily subservient to the supreme law of the land.
The American experiment on representative democracy is incredibly complicated in practice, but quite simple in principle. The Constitution is the supreme law of the land, above and beyond all others. Neither Congress, nor the President, nor the Courts, nor any state or local government can pass any law, issue any order, enact any edict, or perform any action that runs afoul of the Constitution. The Constitution itself dictates the structure of the federal government, including dividing it into three co-equal branches, while specifically naming the head of only one branch, the President as Chief Executive. Under this system, Congress has the power to make law, the Courts to interpret law, and the President to enact law. The President, however, stands alone as being a singular person vested with such authority. Though he or she presides over the Executive Branch, and is subject to advice and consent in certain areas, the President is the final decision maker in all operational matters affecting the United States government, imbuing the office with awesome powers as well as rights and prerogatives reserved for no one else. Further, these powers cannot be curtailed, abridged, or restricted in any way. Congress can pass no law taking away the President’s control over the Executive Branch, or limiting his or her authority, nor can any state or local government. The system does, however, include various checks and balances on presidential authority, including review by the courts, control of the budget, the ability to override a veto, and of course, impeachment and removal from office. Crucially, these checks and balances are legal processes, but not in the sense that a law would apply to you, me, or any other average citizen. When a President issues an Executive Order that is ultimately overturned by the courts, he or she has technically broken the law, but there are no charges, fines, or anything of the sort as there would be for the average citizen, even an employee or representative of the government. The matter being deemed political, the order is overturned without additional consequence. If Congress feels the President has exceeded their authority to the point where a “high crime” has been committed, impeachment is the only remedy available. By this means, the President is both above the law in many ways and yet constrained by it – and the prevailing political reality. When how to resolve a dispute remains unclear or undecided, with no precedent in the past, the Constitution’s “We the people preamble” places the ultimate power to resolve disputes in the hands of the citizenry, either working through their elected representatives to pass an Amendment or via an election.
Sadly, Juan Merchan, acting judge in the New York State Supreme Court in New York County, appears to be unaware of how this system, which has endured for 240 years, really works. This Friday, January 10, he is set to impose sentencing on former President and President-elect Donald Trump following his conviction on 34 counts of falsifying business records last year. While Judge Merchan is expected to issue an unconditional discharge with no jail time, the sentencing hearing comes after he refused to dismiss the charges in their entirety following President Trump’s electoral victory last November and the conviction against the former President will remain further to the appeals process. Whether or not the President is sentenced to jail time and whether anyone is saying as much, the result is an inversion of the Constitutional order described above and a clear Constitutional crisis. Indeed, Judge Merchan noted the political time table specifically in his ruling, claiming that “it is incumbent upon this Court to set this matter down for the imposition of sentence prior to January 20, 2025,” because President Trump would be inaugurated at that point and beyond the reach of state or even federal courts during his time in office. In other words, he simultaneously acknowledged that the Constitution itself places the President beyond his authority, but that he can circumvent this reality with some convenient timing; finalize the conviction before the inauguration and all is well, so much so that he is compelled to do so, by who or what he doesn’t say. Further, it is only through his good graces that the President-elect and potentially even the President would remain out of jail. He and he alone has decided that the unconditional discharge is the correct sentence, but it doesn’t have to be considering the possible penalties include fines and imprisonment, of which Judge Merchan noted himself, “the Court’s inclination [is] to not impose any sentence of incarceration.” He expanded upon this notion, “the Court, having regard to the nature and circumstances of the offense and to the history, character and condition of the defendant, is of the opinion that neither the public interest nor the ends of justice would be served by a sentence of imprisonment and that probation supervision is not appropriate,” and “no proper purpose would be served by imposing any condition upon the defendant’s release.” Even if we dispense with the Constitutional issues, the reasoning makes little sense. If the judge is compelled to pass the sentence before the inauguration and has the legal authority to do so, wouldn’t he be equally compelled to pass a sentence dictated by his conscience rather than a conviction followed by the legal equivalent of a get out of jail free card?
Admittedly, this particular situation is complicated and unprecedented. In the history of the United States, we have not had a person elected to the presidency, much less a former President, after they have been convicted of a crime, yet before they are officially sentenced. Conservatives have generally argued that an outright dismissal is warranted under the circumstances because the charges themselves were politically motivated and should never have been brought. As Margot Cleveland, writing for The Federalist, recently noted, “The case was a sham from the start. But Judge Merchan predictably denied Trump’s motion to dismiss, ignoring everything from his own conflicts-of-interests — he donated to the Biden campaign and his daughter held an ownership interest in a company which made millions representing Democrats, including Kamala Harris — to the DA’s improper use of evidence, both in the grand jury and at trial, concerning official acts Trump took while president, in violation of the Supreme Court’s immunity decision.” She concluded, “While New York liberals may be cheering on Judge Merchan, after Trump’s crushing defeat of Harris, there are likely many Democrats hoping the appellate court puts an end to the farce as their lawfare has only helped Trump politically. And with Trump set to reenter the White House with a mandate, and with Republicans in charge of Congress, Democrats cannot afford any further backlash.” This is certainly true to a point, but in my opinion at least, it fails to address the far more fundamental question: If a President, by their ascension to the office, is subject to the Constitution first and foremost, and the Constitution is the supreme law of the land, how can a state judge have any jurisdiction whatsoever regardless of what the President in question was convicted of? Putting this another way, what if the crime was rape or murder? While it is unlikely a convicted rapist or murderer could prevail in a general election, what if they did when the President can’t fulfill their Constitutional duties from a jail cell or death row?
As shocking as it might sound, the Constitution appears to demand that the charges be dismissed and the murderer turned President-elect set free – at least for the time being. The logic, if not the law, is relatively simple. “We the people” are the source of all legal and political power in the United States. The will of the people – as expressed under the framework of the Constitution – supersedes anything and everything else, up to and including changing the Constitution itself with an Amendment. Because all laws are ultimately subservient to the Constitution and the Constitution names the President as the embodiment of the Executive Branch, embodying a set of powers that cannot be curtailed, no conviction by a court of any kind can override the results of a Presidential election, which is also a process specifically outlined in the Constitution. While this interpretation probably sounds outlandish on the surface – how can the supreme law of the land set a murderer free? – consider that appeals courts exist to review the findings of lower courts and convictions frequently get overturned. In truth, a person convicted of murder by a jury of their peers is not at the end of the process with no recourse. Centuries of jurisprudence makes clear that juries sometimes get it wrong for whatever reason, every convicted felon has the right to appeal their case, and if the appeals court finds reason, they can overturn any verdict, rendering the guilty innocent again. In this framing, an election victory is the ultimate appeals court and the American people are the largest possible jury of their peers. To be sure, the ascension to the Presidency for our hypothetical murderer wouldn’t be the end of the story, any more than a guilty verdict is for the average person. Once they assume the office, the House can initiate impeachment proceedings and the Senate can vote to convict and remove them under the existing Constitutional process. Once removed from office, the President would be subject to retrial in the lower courts and could be sentenced like an ordinary citizen. To be sure, one of the least debated aspects of the limits of presidential immunity that dominated some of the discourse last year, was that even under the most expansive argument for presidential authority, that put forth by Donald Trump himself, a president could be convicted of a crime after they were impeached and removed from office, meaning the president isn’t above the law in even the broadest interpretation of their powers. They are first and foremost constrained by the Constitution as they are empowered by it, but after the Constitution is satisfied, they are subject to the same justice as everyone else.
If you still think this sounds insane, consider the alternative: A single, generally unelected judge, and a panel of twelve unelected citizens from a single county’s opinion can supersede the will of American people. While Judge Merchan doesn’t actually come out and say it this way, that is exactly what he’s suggesting. The future of the American experiment is, in his opinion, in his hands alone. This view is far, far more insane in my opinion, even if we dispense with the fact that his own reasoning is suspect and his timetable is undoubtedly political, and should be rejected as such.
Confessions of a Conservative Atheist 