Murder (not) on Fifth Avenue

by David Benjamin

“Well, when the president does it, that means that it is not illegal.” 

— Richard Milhous Nixon

NEW YORK CITY — Car 54 came to a screeching halt in the 700 block of Fifth Avenue. Officers Francis Muldoon and Gunther Toody leapt from their cruiser, drew their weapons and cautiously approached a golden-maned six-footer in a dark suit with a long, long bright red necktie, who stood in the middle of the street, towering over a crumpled figure seeping blood.

The apparent perp, whose face was an unhealthy shade of peach except for two pallid circles around his eyes, brandished a smoking gun. Nearby was a black limousine, against which numerous men, in black suits, lounged impassively.

Officer Muldoon nudged his partner. He said, “Gunther. That’s him. That’s Trump. The president.”

“Gee whiz, you’re right, said Officer Toody. “And he just shot a guy in the middle of Fifth Avenue!”

While waiting for backup, the officers determined that, indeed, the president had just “taken out” a random target, whose driver’s license identified him as George P. Gomez of Syosset. Asked why he shot the man, Trump simply replied, “I have an Article 2 where I have the right to do whatever I want as president.”

Toody turned to Muldoon. “What the hell’s an Article 2?”

“Search me,” said Muldoon. “I think that’s one of the questions I got wrong on the sergeant’s exam.”

“Excuse me, officers. I’ll explain,” said a newcomer, who had just emerged from the limousine. “It’s a straightforward case of executive privilege enhanced by the principle of absolute immunity.”

“Say what?” said Toody.

Introducing himself as a Harvard Law professor, television pundit and the Foremost Legal Mind of His Generation, the intruder, Dershowitz by name, explained, “Y’see, boys, the president here is an elected public official, right?”

The two policemen nodded.

“And,” Dershowitz continued, “you’ll certainly agree that every public official believes that the sun rises straight out of his own ass, shining away and filling the vast public with warmth and adoration.”

Toody and Muldoon agreed.

“In short, fellas, every public official ever born believes his election — and re-election — is in the public interest. And if a president does something which he believes will help him get elected is in the public interest, that cannot be a crime.”

“Killing this guy,” asked Muldoon, rather archly, “was in the public interest?”

“Everything I do for me,” said Trump, “is good for everybody, everywhere.”

“Maybe not for George there,” said Toody. “Why shoot the guy?”

“Duh,” replied Trump sarcastically.”Because I’m the president.”

“I’ll explain,” said Dershowitz. “The operative theory here is that ethical and legal restraints do not apply to a president who has been raised in a moral vacuum, rescued from every abomination, rape, fraud and outrage that he’s ever committed, and has no grasp whatsoever of any ethical or legal restraints, up to and including the arbitrary murder of the luckless Mr. Gomez lying there on the pavement.”

“I think I get it,” said Officer Muldoon. “But couldn’t we at least ask him to turn over his gun, before he shoots anyone else?”

“Funny you should ask,” said Dershowitz.

“So long as I am president, I will always protect your Second Amendment right to keep and bear arms,” said Trump stentorianly. A gathering crowd burst into applause. Trump went toward them, as though pulled by a magnet. The two policemen tried to stop him. The men in black blocked their way, menacingly.

Just then, a new arrival burst onto the scene, shouting, “Arrest this man.”

With a touch of awe, Toody and Muldoon recognized him as Cyrus Vance, Jr., New York’s district attorney.

“We tried. But he’s the president,” whispered Officer Toody.

“He just shot down an innocent man in the middle of Fifth Avenue,” snapped Vance. “I don’t care who he is!”

“You’d better care,” said another newcomer, a portly figure with a sad-dog cartoon face and black-rimmed glasses. “Because there are legal issues here that go to the very heart of the executive branch of the government of the United States of America, grasshopper!”

“Grasshopper?” said Vance.

This fresh speaker, clearly recognizable as Attorney General William Barr, casually cited Polybius, Montesquieu and Locke, after which he said, “Consider, at the very minimum, the implications of McDonnell v. United States, 136 S.Ct. 2355, 2369 (2016), in which it was established that if a statute prohibits the president from ‘slapping, punching, kicking, biting, gouging eyes, or otherwise hurting’ another person, the word ‘hurting’ in the residual clause would naturally be understood as referring to the same kind of physical injury inflicted by the enumerated acts, but inflicted in a different way — i.e., pulling hair.  You see what I’m getting at?”

“Frankly,” said Vance, “no.”

“Me neither,” said Muldoon.

“Your incomprehension is exactly my point,” said Barr. “The law makes no mention of shooting, killing, or stomping on the corpse to make sure he’s dead.”

Meanwhile, the president had entered the crowd of awestruck fans. He began autographing red baseball caps. His crew of men in black, equipped with credit-card readers, were charging $69.95 per cap.

“You’re talkin‘ gobbledegook,” snarled the district attorney.

Barr scoffed. “Hardly! This casual act of arrogant mayhem goes to the heart of the president’s Constitutional authority over the life and death of ever subject — er, citizen in America. As I said in my memo to Deputy Attorney General Rosenstein in June 2018, the Constitution itself places no limit on the President’s authority to act on matters which concern him or his own conduct… Thus, the full measure of law enforcement authority is placed in the President’s hands, and no limit is placed on the kinds of cases subject to his control and supervision.”

“That’s what I said, bro,” said Dershowitz.

“Yeah, but you didn’t cite McDonnell v. United States, 136 S.Ct. 2355, 2369,” crowed Barr.

“Oh yeah?” said Dershowitz. “Well, you never taught at Harvard. So there!”

Vance interceded. “You guys are saying that shooting this poor guy, out of the blue, on Fifth Avenue, in cold blood, in broad daylight, is within the president’s control and supervision, over which there is no limit?”

“You got it,” said Barr. “It’s all in my memo. If you even think about arresting Trump — president of all he surveys — for shooting a mere nobody, that would be an illicit effort to impermissibly disempower the unitary executive of the USA.”

Vance protested weakly. “But this is depraved.”

Gleefully quoting himself again, Barr replied, “Pshaw! What is depraved — the means or the motive? If the latter, what makes the motive depraved if the means are within one’s legal rights?”

Officer Toody, tired of all the legalistic byplay, nudged the district attorney. “Sorry, sir, but me and Muldoon, we gotta go.”

“Yeah,” said Muldoon. “There’s a holdup in the Bronx, Brooklyn’s broken out in fights…”