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Equal Justice Under Law—the words chiseled into the marble exterior above the Supreme Court—capture a fundamental, if often unfulfilled, American ideal.
The words paraphrase the Court's unanimous 1891 opinion in Caldwell v. Texas. As of today, three separate grand juries—composed of rank-and-file citizens, not "deep state" apparatchiks—have indicted the former president of the United States in three different cases. The nation thus faces a test: Do those iconic words represent American fact or American fiction?
Americans' eyes may glaze over when they hear phrases like "the rule of law." Such is the dangerous luxury of complacency. But nearly 250 years ago, revolutionaries risked their lives to garner the rule of law over the rule of men. They fought against a king who asserted that he could do no wrong; who asserted that the law did not apply to him; who "made Judges dependent on his Will alone"—as stated in the grievances in the Declaration of Independence.
Accordingly, it should be startling that, in his final days in office, even some of Trump's own aides and allies characterized his actions by direct analogy to "mad King George." Allegations of obstruction of justice detailed in the superseding indictment in the Mar-a-Lago classified documents case reinforce the similarities, and indeed, extend them beyond his term of office.
Trump's conception of impartial justice is entirely dependent on his personal vantage point:
(1) As a candidate in 2016, he led chants of "lock her up"; in the Oct. 9, 2016, debate, he told Hillary Clinton, "If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation, because there has never been so many lies, so much deception."
(2) When in office, Trump deployed the Department of Justice to "punish his foes and reward his friends."
(3) Now, as a defendant facing 78 felony counts in three different cases, and a possible fourth case in Georgia, Mr. Trump characterizes the cases as "witch hunts"; engages in ad hominem attacks on prosecutors, judges, and their families; and, on Friday, he posted a "chilling" threat triggering a late-night court filing by Special Prosecutor Jack Smith, as Trump's post suggested he might intimidate witnesses or reveal confidential information.
(4) Finally, as the clear frontrunner for the GOP nomination, Trump nevertheless vows to pursue charges against "the Biden crime family."
As Peter Baker of The New York Times wrote last week, the "wave of whataboutism from Trump world" is aimed at "shifting attention from the former president's kaleidoscopic legal troubles." The cornerstone of Trump's rhetorical sleight of hand is false equivalence vis-a-vis Hunter Biden, who pleaded not guilty to federal tax charges after the unraveling of a plea deal with prosecutors in late July. Of course, if Hunter Biden pleads guilty to, or is found guilty of, the charges against him, he will be held accountable. Yet, as conservative stalwart, and former federal judge, J. Michael Luttig has noted, "There is simply no comparison whatsoever between the case against Trump and the case against Hunter Biden. It is silly even to speak of the two in the same breath."
Trump plays the victim, writing, "I am leading in all Polls, including against Crooked Joe, but this is not a level playing field. It is Election Interference, & the Supreme Court must intercede."
But obstructing the lawful certification of the results—the apotheosis of election interference—is literally one of the offenses Trump is charged with. Projection much?
There is no convenient time for the criminal justice process to intersect with the presidency. Holding a former president who is also a current candidate legally accountable presents a choice: uphold the rule of law, or provide a perpetual get-out-of-jail-free card. A 1973 Department of Justice memorandum takes the position that a sitting president cannot be criminally indicted. Special Counsel Robert Mueller took this memo to mean charging the president with a crime was "not an option we could consider." Thus, to borrow from the tale of Goldilocks, it is "too soon" to indict when a president is still in office.
Yet only 22 months after leaving office, and only three months after the FBI executed a search warrant at Mar-a-Lago, Trump then officially declared himself a candidate for the 2024 campaign, and thus now asserts that the criminal justice process should yield to his status as a 2024 candidate— i.e., it is now "too late."
Honoring both the DOJ memorandum and a parallel, candidacy-based immunity would leave no possible "just right" time. Taken to its logical conclusion, Trump (or any other person in his circumstances) could avoid accountability in perpetuity by being president or a perennial candidate.
Mr. Trump is entitled to the same rights and presumptions as all criminal defendants. But to absolve him of charges—or to fail to charge him—because of who he is, or because of the position he held, is to perpetuate the very corruption the revolutionaries abjured. A president, unlike a king, can do wrong, and must be held to answer for it. Equal Justice Under Law depends on it. The world is watching. Are we who, and what, we purport to be?
James J. Sample is a professor of law at the Maurice A. Deane School of Law at Hofstra University. You can find him @jamesjsample.
The views expressed in this article are the writer's own.
