The Constitutional Crisis Has Begun

Many scoffed when I and others suggested that Donald Trump wanted to be an autocrat in the style of Vladimir Putin, Mussolini and/or Hitler.  Yet, now, based on a memo that has leaked, Trump and his lawyers - a questionable lot in some cases - are asserting that Trump is above the law.  Indeed, the law is whatever he says it is and he can end or launch investigations by the FBI or Justice Department on a whim or in the midst of a temper tantrum.   Thus, there can be no obstruction of justice if Trump is the one engaging in obstruction.  Moreover, Trump can pardon himself.  In short, Trump is akin to a Roman emperor or an absolute monarch in the Europe of old.  If Trump persists in these demands and delusions, we have arrived at a full blown constitutional crisis.  A piece in New York Magazine looks at the disturbing situation.  Here are highlights:

For most of Donald Trump’s presidency, the specter of a coming constitutional crisis has loomed over the Russia investigation. The newly leaked memo by Trump’s lawyers, obtained by the New York Times, suggests that such a crisis is not merely a likelihood, but that it has already begun.

The memo proposes several tendentious interpretations of the publicly available facts of Trump’s behavior, along with some legally questionable and amateurish citations of precedent. But the most important passage is its sweeping assertion of presidential authority.

“The President not only has unfettered statutory and Constitutional authority to terminate the FBI Director, he also has Constitutional authority to direct the Justice Department to open or close an investigation, and, of course, the power to pardon any person before, during, or after an investigation and/or conviction,” they write, “Put simply, 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.”

The implications of this authority are breathtaking. Trump, in their view, has unlimited control to open or close any federal investigation.

Trump has been angrily tweeting demands that the investigation into him and his allies be halted, and that the Department of Justice instead open investigations into his political enemies. These tweets have been treated as the ravings of a blowhard who just happens to occupy the most powerful position in the world, yet is somehow merely blowing off steam.

Should Trump’s legal case prevail in the courts — and the legality of such broad claims remains largely untested — it would confer upon any president, but immediately Trump, the ability to open charges against anybody the president wants to charge, and prevent investigations of anybody the president wants to protect, beginning with himself. This is l’état, c’est moi rendered as a formal legal case.

Trump cannot obstruct justice, according to his official legal stance, because justice is whatever Trump says it is. Before this is over, either Trump’s sweeping claim will survive, or the rule of law will, but not both.

A column in the Washington Post also commented on these dangerous and unprecedented - and untrue - assertions.  Here are Excerpts:

The lawyers made a variety of jaw-dropping claims and admissions. For starters, the lawyers admit that Trump dictated on Air Force One an explanation for a June 2016 meeting held with a Russian lawyer. This directly contradicts prior assertions from Sekulow that Trump had nothing to do with the statement, which set out a false explanation for the meeting between Donald Trump Jr., Paul Manafort, Jared Kushner and assorted Russian figures. 

We should pause right there to consider the confession, for that is what it is, that the president put out a statement falsely portraying a meeting that was related to an ongoing investigation into Russian meddling with the 2016 presidential election. Even defenders of broad presidential power to hire and fire executive branch employees lack an argument that drafting a fake explanation to throw off an ongoing investigation is somehow within Trump’s Article II powers. A pack of constitutional experts savaged the argument that Trump could never be prosecuted for obstruction. Daniel Hemel writes:

The Declaration of Independence charged King George III with “obstruct[ing] the administration of justice, by refusing his assent to the laws for establishing judiciary powers.” That alone is evidence that the founding generation did not believe that heads of state were immune from obstruction charges. And while Article II instructs the president to “take care that the laws be faithfully executed,” that does not give him carte blanche to wield his law enforcement powers any way he chooses.

Laurence Tribe likewise tweeted: “Trump’s lawyers’ sweepingly Nixonian claim of unbounded presidential power is inconsistent with the core American principle that no-one is above the law. It would mean that even pardoning someone in return for a bribe is just fine. That’s simply wrong.” Trump’s lawyers, in making such a ludicrous claim of power, make both a constitutional and political error. The political error is nearly as great as the constitutional flaw is (i.e. we are not an absolute monarchy). Democrats have been struggling with how to address the “I” word (impeachment) in the campaign. Now they have the most powerful argument imaginable in the first referendum on the president since his election: Republicans support Trump’s claim to absolute power; Democrats do not. Which party should we have control Congress?
 Where does this leave us? Trump and his attorneys are prepared to argue that his power is near absolute to shut down investigations into his own conduct and that in any event he could pardon himself. That is not the system we have, but we are heading toward that constitutional face-off — especially if voters return GOP majorities ready to defend Trump’s claims to unfettered power.