Who’s Above the Regulation?
In the past four years, and especially in the past two months, our former president has taken many actions that violate the laws of our country. As the events of the past two months have shown, many people feel that our President can act above the law. These events raise a number of questions: What is the law? What should the law be? How important is it that we uphold the principle that no one is above the law?
The “law” 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 court and the arbitrators who make the decisions in arbitration proceedings. There are also mediators who try to resolve disputes so that judges and arbitrators don’t have to make decisions.
For the past two months, the judicial system in the United States has been bombarded with unsubstantiated complaints in an attempt to reverse the results of the majority vote in our president’s election. Whether the judge was a Republican or a Democrat was irrelevant to the unanimous rejection of the conspiracy theories advocated by Donald Trump’s supporters.
However, the fight continues as 100 senators decide whether our former president has committed crimes and offenses that threatened the very existence of our democracy. There are also people who voted against taking the second impeachment to court. They argue that since Trump is no longer in office, no impeachment process is required. The other Senators argue that this would give any president permission to commit misconduct in the final months of their term in office – specifically the types of crimes that the Constitution provides as grounds for convicting a person for impeachment. If you were given a free pass because these acts were legal at the end of your term, you have successfully acted above the law.
In addition to the law established in the constitution, the law contains other elements – a specific law or ordinance that interprets that law. It takes an argument. It requires lawyers for each side of the dispute. As practicing lawyers, we are only the most visible part of the group of people who put forward arguments to a decision maker about what the law should look like to settle this dispute.
The final act in determining the law takes place in the courtroom. The judges are at the top. There are judges, clerks and assistants as well as court staff who provide direct support to the judge. There are numerous clerks and assistants in the court system who also help the public. In addition, there are employees who work for the legal publishing and research companies to prepare and process the aforementioned cases for publication. These publications assist the courts and lawyers in explaining why the law and specific facts support their clients’ position. Finally, there are the numerous individuals who work in the legal services industry who are charged with operating the law and assisting lawyers. These individuals include court reporters, video operators, and translators – to name a few.
An overlooked part of the law is the litigants themselves. In the criminal and regulatory context, it is the government that prosecutes a company or individual for suspected misconduct. In the civil context, there is the party that sues and one party that is sued. There is usually a real argument going on. However, this is not always the case.
In a recent book by James Zirin, titled Plaintiff in Chief, he shows how Trump used “the law” as a tool in over 3,500 cases to avoid paying numerous companies and individuals who performed services for his businesses or as an offensive weapon to harm his enemies. While reading this book several years ago, it became clear how with personal immunity in office he would continue to abuse the law for his own benefit. However, in the vast majority of cases, there is a legitimate dispute that needs to be resolved in our courts. It’s far better than the alternative.
The consistent setbacks in the former president’s numerous attacks on the electoral process have confirmed the concept in our judicial system that no one is above the law. The Senate is the court for the impeachment of a president or a high-ranking government official. Hopefully the law will be applied to the facts as intended, rather than avoiding the trial and letting the senators rule on the evidence. If not, these senators will again act above the law.
When we adopted this title for our weekly article, it was intended as a means of educating our clients and others about various aspects of the law. Little did we know that the term “above the law” would have what it means now as a result of one person – the former president of our country. It is time to reaffirm the principle that no one is above the law.
Charles Hecht is an entrepreneurial lawyer who had his own law firm for 39 years and who recently joined Balestriere Fariello as a partner. He specializes in innovative solutions for complex litigation, arbitration and securities transactions. He values teamwork, which is one of the reasons he joined a New York boutique law firm. He and his colleagues represent national and international clients in litigation, arbitration, government investigations and securities transactions. You can contact him by email at firstname.lastname@example.org.