Republic of the Rule of Law

The United States of America is the greatest Republic on earth!

 When America’s Founding Fathers  “an extraordinary gathering of intellectual firepower,” among them “students of history and political philosophy, students of government and students of human nature”  deliberated for long and deeply about the form of government that should anchor their new Republic seeded in the highest purpose, they recommended, in essence, a Republic whose affairs would be grounded in the Rule of Law.

(See Edward W. Najam, Jr., “The Constitution, Factions, and the Rule of Law,” in Res Gestae: A Monthly Publication of the Indiana State Bar Association 11 [April 2021]).

When the Philadelphia Convention that preceded the creation of America adjourned at some point, according to historical narratives, a woman asked Benjamin Franklin: “what have we got a republic or a monarchy[?]” Franklin is reported to have responded: “A republic; if you can keep it.”  

The United States was not born when the woman asked Franklin whether it was a Republic or a monarchy that the Founders were bequeathing to them.

Centuries after America existed and flourished as a Republic, a reporter inquired from Allan Greenspan, the legendary former chair of the Federal Reserve of America, of the secret recipe of America’s success.

Greenspan said America’s commitment to the Rule of Law was the secret to its success. 
America appears to have kept its admirable Republic in more ways than one, by anchoring it on the Rule of Law.    

Indictment of Trump

Several credible media sources in America, beginning on Thursday, March 30, 2023, reported of the indictment of former President Donald J. Trump. At the time of these reports, the indictment was sealed and the charges as well.      

These reports were confirmed on Tuesday, April 4, 2023. Alvin L. Bragg, the Manhattan District Attorney, formally charged Mr Trump in the case of the People of the State of New York vs Donald J. Trump, Indictment No. 71543-23. The charges stemmed from the dying days of the 2016 presidential election and Mr Trump’s role in buying the silence of an adult entertainment star.

Mr Trump pleaded not guilty to all 34 class E felonies charges.

Following the announced indictment, Nicholas Kristof, a columnist of the liberal The New York Times newspaper, recalled that treating American presidents as equal citizens under the law is a longstanding American tradition: “In 1872, President Ulysses S. Grant was arrested by a police officer for speeding in his horse-drawn coach in Washington. The officer stuck out his hand to signal a stop, and Grant obeyed and then accompanied the officer to the police station.”

(“How a President’s Arrest Can Strengthen a Democracy,” March 30, 2023).

Indeed, the laws of America have demonstrably applied equally to its presidents. Current President Joe Biden is under investigation for his handling of classified information.

While president, Trump was investigated severally and impeached twice.

While president, Bill Clinton was investigated and impeached.

And while president, Richard Nixon was investigated and subsequently forced to resign as president. 

Supreme    

That in America, the Rule of Law is supreme, has never been a ludicrous liberal political ideal. But this is the first time that formal charges have been levelled against a former president in America.

Charging Mr Trump is indicative of America’s continuous quest since its founding days to jealously guide its Rule of Law.

I am aware that some, including Mr Trump’s legal team, are arguing openly that the indictment is rooted in electoral politics and is, in fact, political prosecution of the former president who has been making the case for his return to the White House.

But still, the charging of Mr Trump strongly evinces the fact that what the French King, Louis XIV, once asserted of his power over the state: “L’état, c’est moi” (I am the state), cannot be owned by the world’s most powerful Republic’s primus citizen.

Justice Kwaku Etrew Amua-Sekyi, in the case of New Patriotic Party v President Rawlings, wrote of the amenability of Ghanaian presidents to the law: “Although the President is the first citizen, he is not above the law.

The medieval fiction that the ‘King can do no wrong,’ which the sophists interpreted to mean that if the action was wrong, then it was not that of the king, has no place in a republican setting which prides itself on all citizens being equal under the law and therefore obliged to act in conformity with it.

We recognise that the executive President, being the most powerful person in the State, is the one who has the greatest capacity for wrong-doing.” (NPP v Rawlings [1993-94] 2 GLR at 205-206.)

While in office, Ghanaian presidents are not named parties to lawsuits because the Constitution intended, in the elegant phrasing of Seth Yeboa Bimpong-Buta, to preserve “the dignity and the aura of respectability of the President as Head of State.”

But an action, subject to the statute of limitation, might be brought against them when they leave office.

While we should not unjustifiably arrange our former presidents before our courts, we should not forget that even presidents are not above the law.   

The writer is an attorney/doctoral fellow, Fordham University Law School, N.Y., USA. 
E-mail: pbatinge@fordham.edu