June 5, 2018 | Reading Time: 3 minutes
Trump Perverts the Constitution
Yes, that's sounds extreme. Yes, that's what the president is doing.
It should be clear by now that President Trump, by way of his attorneys, is asserting that he is above the law. That’s what it means when a president says he has the “absolute right” to pardon himself. That’s what it means when a president says the Constitution gives him so much power that the rule of law does not apply to him.
Yes, this is still debated, but only because Trump’s attorneys want to have it both ways. To Special Counsel Robert Mueller, Trump’s attorneys claim vast powers no president has ever before claimed. On cable news, however, spokesman Rudy Giuliani says no one is above the law.
Ignore that. When Trump claimed his “absolute right,” we should have heard echoes of the divine right of kings. We need to talk about what all of this means. In short, this crisis speaks to the very idea of what America is about.
First, bear in mind that all presidents function on the margins of the law. They must, because of their unique position. In times of emergency, presidents have done whatever they felt was necessary, even if it meant violating norms, values and laws. Franklin Roosevelt imprisoned without due process Japanese-Americans during World War II. Richard Nixon spied on political opponents for fear of (alleged) threats by covert Soviet agents. George W. Bush signed off on torture when he believed it provided vital intelligence information. All three were wrong, factually, morally and legally, but that’s not the point. They acted above the law in the name of country.
Trump isn’t doing that. He is not saying that he’s above the law in the interest of national security. He’s saying that he’s above the law, because he’s president. He’s saying that even though he’s the subject of a federal investigation, he can stop it at any time for any reason he pleases. Unlike other presidents, he need not justify breaking the law, because he can’t break the law. The president is the law.
This is more complex than you might realize. If the president is the law, he can use the law to investigate and prosecute anyone he doesn’t like. Justice is blind for everyone except the president. If the president is the law, he can’t be held responsible for virtually any crime he commits. This is what I meant when I said we heard echoes of the divine right of kings. This is why former deputy attorney general Harry Litman wrote in the New York Times: “President Trump Thinks He’s a King.”
Now, you could argue, reasonably, that a president can’t be held accountable for crimes committed using his official powers as long as such crimes were committed in the interest of national security. Other presidents have done that. Trump could, too. But he’s not. Instead, he’s saying two things.
One, that he can’t he held accountable for crimes committed using his official powers. He can end a federal investigation into his ties to Russia, for instance, because he’s the president. Two, that he can’t be held account for crimes committed in areas outside his official presidential powers. Witness tampering, for instance, is a crime with no relevance to being president. Yet Trump is claiming immunity even to that crime.
A Trump attorney said:
“The Constitution leaves no question that the president has exclusive authority over the ultimate conduct and disposition of all criminal investigations and over those executive branch officials responsible for conducting those investigations.”
America is about a lot of things, but its core reason for existing is rooted in the relationship between power and liberty. The more power is centralized in one place—in this case the office of the president of the United States—the less freedom there is for everyone else, the founders believed.
That’s why they designed a system of government that decentralizes power, so that one form of power checks and balances another form of power. The Congress checks the executive. The executive checks the Congress. The courts check the executive and the Congress. The states check the federal government, and vice versa.
The claim that the president is the law itself is extraordinary, because it is alien to our history. But the claim that a Constitution expressly designed to check power with power would liberate a president to do whatever he wants isn’t just extraordinary.
It’s a perversion.
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John Stoehr is the editor of the Editorial Board. He writes the daily edition open and available to all. Find him @johnastoehr.