Is the President of the United States above the law?
The keynote speaker at this week’s Morristown Festival of Books believes the answer, technically, is yes.
“Ultimately, we like to believe that no one’s above the law. But there are ways in which the President has been given enormous power and authority and, you know, has license to do things unlike any other citizen,” said Preet Bharara, author of Doing Justice, A Prosecutor’s Thoughts on Crime Punishment and the Rule of Law.
The former U.S. Attorney for the Southern District of New York will deliver his presentation this Friday, Oct. 11, 2019, at 7:30 pm in the Mayo Performing Arts Center. MSNBC Anchor Katy Tur will moderate. Tickets are $25-$55.
More than 50 authors from numerous genres will give free talks on Saturday, Oct. 12, at several downtown venues. Now in its sixth year, the festival includes a KidFest, and will be capped by Pitchapalooza: 20 writers blasting one-minute book pitches to a panel of judges. Tickets for that are $20.
Hailed by the New York Times as one of America’s “most aggressive and outspoken prosecutors” during his tenure under President Obama, Bharara was asked to stay by President-elect Donald Trump–and fired months later, in 2017 when he refused to resign with 45 other U.S. Attorney holdovers.
The order to quit came one day after Bharara declined a call from President Trump.
“He called me and I thought that was inappropriate,” said Bharara.
Appointed in 2009, he oversaw 200 lawyers who prosecuted terrorists, gang members, crooked politicians and cops, and financial and healthcare fraudsters, among other shady characters.
Bharara, 50, expresses no regrets about dodging the boss.
“Don’t we now know how fraught a thing it is to have an inappropriate phone call with the President, whether you were the leader of Ukraine, the FBI Director, or the Attorney General or anyone else,” he told MorristownGreen.com last week.
These days, Bharara is a scholar-in-residence at the NYU School of Law, a legal analyst for CNN, and host of the podcast Stay Tuned with Preet, with former New Jersey Attorney General Anne Milgram.
He chairs the Bharara Insider Trading Commission, and co-chairs the nonpartisan National Taskforce on Rule of Law and Democracy with former New Jersey Gov. Christie Whitman.
Bharara’s book only makes fleeting reference to his dismissal as U.S. Attorney. But it reads like a primer on American jurisprudence for the president who sacked him.
“I wanted to write a book about first principles, and about ideas and tenets that I believed in and was taught long before Donald Trump ever announced for the presidency,” said Bharara, who grew up in Eatontown.
“Now, if those things have greater resonance after Donald Trump has taken office and done the very things he’s done, that’s an interesting thing that people should think about and be aware of.”
Current events, he contends, are best addressed by revisiting basic principles: “What is truth? What is justice, what is fairness? What is justice? How do you go about achieving those things?”
Until recently, Bharara said, most citizens probably were unaware that sitting presidents cannot be charged with crimes, “even if there’s evidence beyond a reasonable doubt that the President has committed a crime.”
Such guidance has been set forth twice over the last quarter-century, he said, by Departments of Justice under Democratic and Republican administrations.
It’s one reason why Special Counsel Robert Mueller expressed no legal opinion on President Trump’s conduct, even though Volume Two of Mueller’s 448-page report on Russian interference in the 2016 election lays out evidence for an obstruction of justice case against Trump after he leaves office, Bharara said.
Such a prosecution might do more harm than good, further polarizing the country, cautioned Bharara.
As he sees it, the dilemma is this: To ensure the executive branch has an effective leader, our constitutional democracy has made allowances to spare presidents from legal attacks.
At the same time, this clashes with “a bedrock principle of the Constitution and the Republic, that no person is above the law.”
Now the United States finds that its president, Republican or Democrat, “can engage in conduct, like the declassification of secret information, whose release could be harmful to the U.S., and that person can do it in a way that nobody else can do it, because we give that kind of power to the President.”
Presidential abuses of power can be checked by Congress, he said, via impeachment, and by amending the Constitution.
Though generally averse to the latter route, Bharara acknowledges times when it has been necessary. Notably, the Twenty-Second Amendment imposed term limits after President Franklin Roosevelt was elected four times.
Congress should consider reining in presidents’ unlimited power to grant pardons, Bharara added.
“He can do it for any reason he wants. (Trump) has taken the position that he can pardon himself. He’s taken the position that if he wants, he can pardon business associates.
“I don’t think that was ever intended by the Founders. They wanted a broad power so injustice could be corrected, but they did not intend it to allow a president to prevent himself from being implicated in crimes by trading a pardon for silence, or for inoculating business associates of his,” Bharara said.
Public opinion will be a driver of any reforms, he said.
‘THE HATRED…NEEDS TO STOP’
Convictions of corrupt officials resonated most broadly with the public during his stint as U.S. Attorney, Bharara said.
Although he frets that Trump undermines faith in the justice system by disparaging authorities and judges who disagree with him, Bharara still perceives a grudging respect from members of Trump’s inner circle when they must testify under oath.
“When these folks get in front of an officer of the court, or the court itself, you find they’re much less likely to lie and filibuster and spin, because they realize the gravity of doing it in those circumstances,” the former prosecutor said.
“Go back and look at the transcripts of (former Trump campaign chairman) Paul Manafort genuflecting before the court during his proceedings, and (former Trump consultant) Roger Stone, who has never met somebody he wouldn’t drive a train through, challenged in a debate. Boy, was he apologetic to the judge.”
Manafort was convicted last year of tax and bank fraud. Stone faces charges of witness tampering, making false statements and obstructing the Mueller investigation.
Bharara’s parents emigrated from India when he was an infant. His father established a pediatrics practice in Asbury Park, and “learned to accept” that neither of his sons became doctors, joked Bharara, who holds degrees from Harvard and Columbia Law School and has made numerous “most influential” lists.
It’s “extraordinary” how much his relatives have given back to their adopted country, he added, ranking talks he gave at naturalization ceremonies among the highlights of his time as U.S. Attorney.
Demonization of immigrants, he said, is un-American.
“I think it’s very harmful. I think it leads to violence and hatred. And it needs to stop.”