Constitutional Law

Who Is Above The Law?

Although originally intended to be a view of the law to educate our clients, the term 'above the law' has steadily been reshaped by a former president.

By Charles Hecht  
on

(Photo by Win McNamee/Getty Images)

In the past four years, and especially in the past two months, our former president took many acts in defiance of our country’s laws. As the events of the past two months have indicated, many people feel that our president can act above the law. These events bring a series of questions to mind: What is the law? What should be the law? How important is it that we maintain the principle that no person is above the law?

The “law” now means something different depending on the individual. Is it an abstract concept? Does it include the disputes and the people involved? There are the judges, who make the decisions in the courts, and the arbitrators, who make the decisions in arbitrations. There are also the mediators who try to resolve disputes so that judges and arbitrators do not have to make decisions.

In the past two months, the judicial system in the United States has been bombarded with baseless suits trying to overturn the results of the votes by the majority in the election of our president. Whether the judge was a Republican or Democrat was irrelevant in the uniform rejection of the conspiracy theories urged by Donald Trump’s supporters.

However, the battle continues as 100 senators decide whether our former president committed crimes and misdemeanors that threatened the very existence of our democracy. There are also individuals who voted against bringing the second impeachment to trial; they argue that since Trump is no longer in office, there is no need for an impeachment trial. The other senators argue that this would give any president a license to commit wrongdoings during the final months in office — specifically the type of crimes contemplated by the Constitution as grounds to convict someone of impeachment. If given a free pass because these acts were permitted at the end of your term, you have successfully acted above the law.

The law has additional components besides the law as set forth in the Constitution — a particular statute or regulation interpreting that statute. It requires a dispute. It requires advocates for each side of the dispute. As practicing lawyers, we are only the most visible part of the group of persons who present arguments to a decision-maker on what the law should be to resolve that dispute.

The final act in determining what the law is occurs in the courtroom. The judges are at the apex. There are magistrates, law clerks and assistants, as well as court personnel directly aiding the judge. There are the numerous clerks and assistants in the court system that also help the general public. Additionally, there are the people who work for the law publishing and research companies to prepare and digest the cited cases for publication. These publications assist the courts and the lawyers when presenting why the law and the particular facts support their client’s position. Finally, there are the numerous persons involved in the legal service industry who are tasked with servicing the law and assisting the lawyers. These people include court reporters, video operators, and translators — to name a few.

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One overlooked component of the law are the litigants itself. In the criminal and regulatory context, it is the government that is prosecuting a company or an individual for alleged wrongdoing. In the civil context, there is the party suing and a party being sued. There is typically a genuine dispute. However, that is not always the case.

In a recent book by James Zirin, entitled “Plaintiff in Chief,” he shows how Trump has used “the law” in more than 3,500 cases as a tool to not pay numerous companies and persons who provided services to his entities or as an offensive weapon to harm his enemies. In reading that book a few years ago, it was clear to see how he, with personal immunity in office, would continue to misuse the law for his own personal benefit. However, in the great majority of cases, there is a legitimate dispute that needs to be resolved in our courts. It is far better than the alternative.

The uniform setbacks to the former president’s numerous attacks on the electoral process have reconfirmed the concept in our court system that no one is above the law. The Senate is the court for impeachment of a president or a high-ranking governmental official. Hopefully, it will apply the law to the facts as intended rather than to avoid the process and have the senators rule on the evidence. If it fails to do so, these senators will again be acting above the law.

When we adopted this title for our weekly article, it was intended as a vehicle to educate our clients and others about various aspects of the law. We had no idea that the term “above the law” would have the meaning it now has as a result of one individual — the former president of our country. It is time to reaffirm the principle that no one is above the law.

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Charles Hecht was a partner at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at [email protected].

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