Trump's Indifference to the Constitution
The Republican nominee has advertised his disregard for the constitutional limitations on the president's authority.
During Sunday night’s debate, Donald Trump told Hillary Clinton that, “if I win, I am going to instruct my attorney general to get a special prosecutor to look into your [email] situation.” That would constitute an abuse of power. Presidents are not supposed to “instruct” their attorneys general to appoint a “special prosecutor” (now called an “independent counsel.”) The attorney general is supposed to make that decision apolitically, based on her judgment of whether the Justice Department can impartially investigate the case. By pledging that she would follow the advice of the FBI investigators looking into Clinton’s email controversy, Lynch tried to disentangle legal considerations from partisan ones. By promising that he will “instruct” his attorney general to appoint a special prosecutor, Trump is pledging exactly the opposite.
But Trump didn’t stop there. He not only said he would make his attorney general appoint an independent counsel, he also vowed to determine the outcome of that counsel’s investigation. If he becomes president, Trump declared, Clinton will “be in jail.”
Under the Constitution, presidents don’t decide who goes to jail (except insofar as they have the power to pardon). Courts decide who goes to jail based on their assessment of whether someone broke the law.
But Trump’s indifference to the limits on presidential power last night wasn’t surprising. He’s been advertising it since he entered the race.
Last September, after National Review editor Rich Lowry said that Carly Fiorina had “cut his balls off with the precision of a surgeon” at a GOP primary debate, Trump tweeted that Lowry “should not be allowed on TV and the FCC should fine him!” Legally, there’s a debate about whether the FCC can fine broadcasters for obscene or indecent behavior. But even if it can, the Commission is supposed to do so based on objective, apolitical criteria. Trump, by contrast, was proposing to use the obscenity laws to silence his critics in the press. Doing so would transform the FCC in the same way Trump last night proposed to transform the independent counsel: from an institution tasked with impartially interpreting the law into a weapon to be used against Trump’s political adversaries.
For Trump, this has been a theme. In May, angered by the “ridiculous questions” that Washington Post reporters were asking him, Trump warned that owner Jeff Bezos “is getting away with murder, tax-wise” and “we can’t let him get away with it.” In February, he warned that “if I become president,” Bezos and the Post are “going to have such problems.”
Put aside the irony of Trump fuming about a billionaire who is “getting away with murder, tax-wise.” If Bezos and his company, Amazon, really aren’t paying the taxes they owe, that’s a matter for the IRS and the career prosecutors at the Department of Justice. They’re supposed to be guided by legal precedent. Trump, by contrast wants turn them—along with the independent counsel and FCC—into vehicles for retaliation against his critics and foes.
He leveled the same threat against Gonzalo Curiel, the San Diego judge presiding over the lawsuit against Trump University. “They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace,” Trump declared. It’s not clear who Trump means by “they.” There are procedures for accusing a judge of misconduct. But for a president to use those procedures to retaliate against a judge who is ruling against his financial interests would threaten the independence of the judiciary.
But the very notion that there are government agencies that operate independently of presidential whim seems alien to Trump. In September, without evidence, he accused Federal Reserve Chair Janet Yellen of keeping interest rates low at President Obama’s instruction, even though the entire point of the Federal Reserve is to insulate monetary policy from White House meddling. In March, Trump vowed that in fighting terrorists, he’d order the U.S. military to “take out their families.” But the military is supposed to follow the law. And the Geneva Convention, ratified by the Senate, prohibits targeting noncombatants. Nonetheless, when asked what he’d do if officers refused to carry out his illegal orders, Trump declared, “They won’t refuse. They’re not gonna refuse me.” In September, Trump pledged that, once elected, he’d install “different generals.” As Brian Palmer noted in Slate, that too runs afoul of our system of government. A president can recall generals from their individual commands. But he can’t simply fire them. “The president is the commander in chief of the armed forces,” Palmer explained, “not the CEO.”
Perhaps Trump’s unfettered vision of executive power stems from his particular experience as a CEO. After all, he hasn’t respected legal boundaries in that role either. Instead of keeping his charity and his for-profit businesses separate, he’s used the former to pay the latter’s legal bills.
But when CEOs don’t respect the legal limits of their power, it’s not that big a problem. It’s not that big a problem because CEOs must yield to judges because judges are agents of the state. And, at the end of the day, the state controls the guns.
When a president doesn’t respect the law, it’s much dicier. By law, presidents are subject to judges too. If judges rule that a president has overstepped his legal authority they can order him to stop. The problem is that the president, unlike the CEO, can refuse to comply because he controls the guns. Or, he may control them. America has generally been spared constitutional crises that force the military to choose sides. In the course of such crises, liberal democracies often die.
What is the risk that a Trump presidency would spark such a crisis? There’s no way to quantify it. But with confidence, we can say this: It is higher than the risk posed by any other presidential candidate in modern American history. After all, even Richard Nixon, when threatened with impeachment, resigned.
Republicans often say one of history’s lessons is that when a leader says he wants to kill you, you should believe him. By that logic, when a would-be leader says he wants to transgress the Constitution, you should believe him, too. Trump has vowed to do so many times. He did again last night. Yet most Republican politicians still look away.