President Trump’s shocking statement on self-pardons and his lawyers’ equally startling letter asserting absolute power over the federal investigation of Trump raise a stark question about our constitutional identity: Are we a democracy? Or does the president have the powers of an absolutist monarch?
The Founders’ writings are replete with revulsion for the absolutism now threatened by Trump. Alexander Hamilton specifically distinguished our new democracy from British monarchy in Federalist 69: “The president of the United States would be an officer elected by the people for four years; the king of Great Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable.” John Adams put into the 1780 Massachusetts constitution the concept of “a government of laws, not of men.”
Those sentiments are an alarming contrast with Trump’s declaration that “I have the absolute right to PARDON myself.”
Also troubling are his lawyers’ statements on his behalf: That his actions, “by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.”
When Trump, his advisers and his allies talk about loyalty and betrayal, they are talking about Trump, not the country. Former U.S. attorney Joe diGenova said on Fox Newsthat “the recusal of Jeff Sessions was an unforced betrayal of the President of the United States,” and Trump approvingly tweeted his quote. Trump’s personal counsel Rudy Giuliani has asserted that Trump couldn’t be indicted, even if he had shot former FBI Director James Comey instead of merely firing him. The Trump administration is seeing and raising Richard Nixon’s absolutist aphorism: “Well, when the president does it, that means that it is not illegal.”
Only in a monarchy is the leader above the law, because the king is the Law. That’s what defines royal sovereignty, as opposed to popular sovereignty.
Americans may still love a royal wedding, but our nation fought a revolution against monarchy and its absolutist abuses of power. That’s why we and other scholars this week told Trump lawyers Don McGahn and Emmet Flood that their administration’s legal theories are anathema in a constitutional democracy.
“Our country’s Founders made it clear in the Declaration of Independence that they did not believe that even a king had such powers; they specifically cited King George’s obstruction of justice as among the ‘injuries and usurpations’ that justified independence,” our group wrote in an eight-page letter. “Our Founders would not have created — and did not create — a Constitution that would permit the president to use his powers to violate the laws for corrupt and self-interested reasons.”
Trump’s attitude in fact flies in the face of the Constitution they wrote. It imposes a duty that the president “shall take Care that the laws be faithfully executed.” The only oath spelled out in the Constitution is the president’s, and in it, the president vows to “faithfully execute the office of president of the United States.” Faithful execution is not just lofty rhetoric; it is tantamount to (and may actually be) a legally enforceable fiduciary duty to serve the people in good faith, and a duty against self-dealing.
The Constitution describes its offices as “trusts,” and just like trustees serving their beneficiaries, federal officers must serve the people, not themselves. A president may never pardon himself (or co-conspirators) or fire officials or shut down investigations in order to benefit himself to the detriment of the people. As our letter says, “The Office of the President is not a get out of jail free card for lawless behavior.”
Our government of laws is a constitutional system of checks and balances precisely to assure that no person ever attains the absolute powers Trump claims. When Congress passes a bribery statute, it applies to everyone, including the president. And when Congress passes an obstruction of justice statute, it applies to the president. While the Constitution gives the president power, that power cannot be used for any illegal purpose, even if it is mixed with valid purposes.
Even if someone deserves a pardon, the president obviously cannot issue that pardon in exchange for cash. And even if there may be a valid reason to dismiss an official, the president cannot do so if he is partly motivated by corrupt intent to obstruct an investigation. The Supreme Court has ruled that Congress can limit a president’s war powers, even though the president is commander in chief. Congress can similarly limit the president’s law enforcement powers with anti-obstruction statutes.
Asked if the framers had created a monarchy or a democracy, Benjamin Franklin famously answered, “A Republic — if you can keep it.” Now we are being faced with the test Franklin foresaw. We survived the Nixon constitutional crisis. Now Trump and his lawyers are uttering threats which, if carried out, would take away our Republic. Are we going to keep it?
By: Jed Shugerman and Norman Eisen