In 1947, U.S. Supreme Court Justice Felix Frankfurter in a concurring opinion of United States v. United Mine Workers said: “If one man can be allowed to determine for himself for what is law, every man can. That means first chaos, then tyranny.”


Former President Richard M. Nixon famously told British interviewer David Frost in April 1977 that “when the president does it, that means it is not illegal.” That statement implied the chief executive held the belief that the President of the United States is above the rule of law.


It has been expressed in many venues that President Donald J. Trump also holds the rule of law in utter contempt. Harvard law professor Lawrence Tribe has openly expressed the view that President Trump not only believes he is not only above the rule of law but has no respect for its rule.


President Should Learn from Fifth Circuit


We would suggest that the President, and his effusive legal counsel, Rudy Giuliani (a/k/a “Rudia” Giuliani), read the May 23, 2018 decision by the Fifth Circuit Court of Appeals in Pierre v. Vannoy. While the facts of the Pierre decision are not applicable to the president’s unrelenting legal woes, the constitutional reasoning and force of the opinion applies to the president and both his personal and executive disdain for the rule of the law.


In the Pierre case, the Fifth Circuit believed that U.S. District Court Judge Jay C. Zainey, sitting in the Eastern District of Louisiana, placed himself above the rule of law.


Perjured Testimony in Criminal Trials


There is a rule of law that the knowing use of perjured testimony during a criminal trial violates the defendant’s constitutional due process right to a fair trial. The courts, however, from the U.S. Supreme Court down to the Fifth Circuit, have never held that the unknowing use of perjured testimony by the prosecution during a criminal trial constitutes a per se due process violation. In fact, the U.S. Supreme Court, Fifth Circuit and Louisiana Supreme Court precedents strongly indicate that a due process violation occurs only when there is the knowing use by the prosecution of perjured testimony.


Perjured testimony by the child sexual assault victim in the Pierre case was unquestionably used during trial. Neither the prosecution, nor anyone associated with the prosecution, knew that portions of the victim’s testimony were false. The Louisiana Supreme Court upheld Pierre’s conviction in a lengthy, detailed opinion. Pierre then applied for federal habeas corpus relief, claiming the perjured testimony, standing alone, violated his due process right to a fair trial.


There is also a federal rule of law that a state prisoner is entitled to federal habeas corpus relief only if the ruling by the last state court denying habeas relief is contrary to or involves an unreasonable application of clearly established federal law as determined by the U.S. Supreme Court. If there is no Supreme Court decision addressing the issue raised by the state prisoner in federal habeas proceedings, then the last opinion issued by the state court enjoys a presumption of correctness.


Judge Rejects Precedent in Favor of Personal Sense of Justice


Pierre’s federal habeas petition was assigned to a U.S. Magistrate Judge for review and recommendations to Judge Zainey. The magistrate issued a comprehensive report recommending that Pierre’s conviction be upheld because there had been no constitutional violation by the prosecution’s unknowing use of the perjured testimony as established Fifth Circuit precedent. Judge Zainey rejected the magistrate findings, and despite the U.S. Supreme Court, Fifth Circuit, and Louisiana Supreme Court precedents supporting the magistrate’s findings, the judge issued an order reversing Pierre’s conviction and life sentence.


To say the Fifth Circuit was upset by Judge Zainey’s ruling would be a classic understatement. The appeals court was so disturbed that it decided to notice anyone who takes the law into their own hands with the following warning:


“Judicial decisions should be construed charitably. But the [Zainey] rulings below are hard to comprehend. The district court failed to acknowledge, let alone analyze, the binding precedents of this Court and the Supreme Court. And it did so despite the magistrate judge’s comprehensive and dutiful opinion analyzing those precedents.


“To anyone who believes in the rule of law, the proceedings below should be disquieting. There will always be disagreements about the law. There will be times when one’s sense of fairness and justice conflicts with the Constitution or established precedent. Perhaps that is what happened below.


Judge Are Obliged to Follow the Law


“But we do not countenance people taking the law into their own hands. This principle binds federal judges as well … ‘Because rational people can sometimes disagree, the inevitable consequence of [AEDPA] is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold them’ … As Judge Bork once observed:


“’In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.’”


President Trump Has Cracked the American Foundation


Likewise, the rule of law, we believe, is not in the purview of the President to define. The rule of law imposes a constitutional duty on the President, as it does every citizen, to obey the law. The President cannot traffic cocaine, sexually assault someone, or kill others around him. Those who believe the President is above the rule of law, or who believe he cannot be indicted for criminal wrongdoing, must necessarily believe that he has a license to commit crimes with impunity.


The rule of law exists to protect the collective good from the individual bad. That is precisely why the Fifth Circuit, and all courts, do not “countenance people taking the law into their own hands,” including the President of the United States. President Donald Trump may politically control, even intimidate, the legislative body politic, and he may threaten and abuse the law enforcement agencies charged with enforcing the rule of law, but he will one day learn that the courts will not tolerate him taking the law into his own hands.