“I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters,” Donald Trump boasted during the campaign. According to his attorney and adviser Rudy Giuliani, if he tried it today, he could get away with murder.
“I said, you know very theoretically, the answer is the president can’t be prosecuted for anything,” Giuliani told CNN, defending an earlier assertion to HuffPost that the president could shoot former FBI Director James Comey and avoid prosecution. “If he shot James Comey, he’d be impeached the next day,” Giuliani said. “Impeach him, and then you can do whatever you want to do to him.”
The scenario Giuliani proposed—the president publicly executing a political antagonist—is not likely, imminent, or even desirable from the White House’s point of view. The point is that from the perspective of some of his closest advisers, it would be perfectly legal for him to stave off prosecution, pardon himself for the act, and even order the prosecution of those who try to hold him to account.
This is the absurd logic of a monarchical system, not a democratic one. For the chief executive to use the power of the state to suppress the opposition, while shielding itself from all potential sanction or limitation, is the logic of tyranny. And even if Trump never makes use of the unlimited powers his advisers claim that he possesses, it’s clear that he is surrounded by a clique of sycophants who are willing to justify any course he might take.
“President Donald Trump and his legal team—they do have the power to literally order the Justice Department to actually initiate an investigation, end an investigation, and by the way, for any reason,” the Fox News host and Trump adviser Sean Hannity declared on Monday evening. “That is within the president’s constitutional authority.” Previously, Jeanine Pirro, one of the president’s favorite Fox News hosts, said that the FBI and Department of Justice needed “to be cleansed of individuals who should not just be fired but who need to be taken out in handcuffs.”
The assertion of these powers offers a startling view into the mind-set of the authoritarian cult of personality that surrounds the president. These supporters of the president have now claimed that, in theory, he cannot only assassinate his political rivals, but also order the Justice Department to open or close any investigation for “any reason.” All of this echoes Trump’s own ominous pronouncement last year that he has an “absolute right to do what I want to do with the Justice Department.”
While many conservative writers and several Republican legislators have publicly scoffed at Trump’s assertion of unlimited criminal-justice powers, none of them are as influential with the president as the red-faced television personalities Trump live-tweets during “executive time.”
Those who assert such unrestrained authority for Trump hold out impeachment, not prosecution, as the proper remedy for any misconduct. But if the president can prosecute anyone for any reason, it renders impeachment as a remedy for presidential misbehavior all but moot. Those who push to impeach the president could be prosecuted for doing so. And even if the president were somehow successfully impeached, he could pardon himself in advance for any crimes he might be charged with after being removed from office.
The worst does not need to happen for this logic to lead to catastrophe. The most imminent danger of Trump following this advice is not just that he uses his powers to protect himself or his advisers, family members, or business partners from accountability for wrongdoing. Trump ran his first presidential campaign calling for his opponent to be imprisoned; his advisers now claim that as president he has the authority to order the investigation and prosecution of any future challenger that emerges. Individuals or organizations that challenge the president must now consider that they may become targets of law enforcement. That very possibility narrows the field of acceptable political expression. If there is a risk of being subjected to investigation, or even imprisonment, simply for opposing the president, then fewer people will do so.
It’s also not the system the framers designed. “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law,” Alexander Hamilton wrote in Federalist No. 69. He drew a sharp contrast with the unchecked authority of the monarch whose rule America had just cast off, who was not similarly accountable. “The person of the king of Great Britain is sacred and inviolable,” he wrote, “there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.” What Hamilton intended as a criticism of the monarchical system is effectively Trump’s position.
In other words, Trump has asserted that he is unprosecutable for any crimes while he holds office, can pardon himself before he leaves, and has an unlimited ability to use the power of the state to repress would-be critics or rivals. Other than a crown, the only thing missing from the monarchical model is hereditary succession—and I say that apprehensively because I don’t want to give anyone any ideas.
It is true that Justice Department regulations state a sitting president can’t be indicted, and Mueller is unlikely to defy those regulations, but the constitutional argument is far from settled.
There is an inherent tension in America’s constitutional system in that the attorney general, the head of the Justice Department, is also a Cabinet official answerable to the president, who can set policy priorities and fire political appointees at will. Yet the authority to arbitrarily order investigations of political opponents would make a mockery of the rule of law. It is another flaw in the American system that it relies on the presumption that the chief executive will be a person of sufficient integrity not to abuse that tension for personal gain.
While the nightmare scenario is unlikely, there is a wide continuum of abuses of power between it and faithfully upholding the rule of law. The president is already engaged in some such abuses: He has sought to use his official powers to punish companies for their ownership of critical media outlets, called for the prosecution of political opponents, and sought to dictate the form and nature of political protest against the state. The goal is ultimately the same—to dissuade political opposition by abusing the powers and office of the presidency. That remains true even if the sanction itself is not implemented, because officials either ignore the demand or refuse to discharge them. For the rule of law to rest so abundantly on the willingness of public officials to ignore or disobey such orders treads dangerously close to the “crisis of national revolution” that Hamilton described.
No conservative pundit, and certainly not Hannity, argued that a Democrat like Barack Obama or Bill Clinton possessed unlimited authority to end an investigation into themselves or their administration, or to order a federal investigation into their political enemies at a whim. The very concept would have sent the entire Fox News network into paroxysms for weeks. The possibility that the IRS had singled out conservative nonprofits for extra scrutiny was a five-alarm fire on Fox News for months; now the network’s hosts believe that the president cannot merely scrutinize his political rivals but prosecute them.They believe there are limits on government, and that certain rights are inviolable, it seems, but only when Democrats are president.
How did we get here? The president and his allies, in an effort to shield themselves from legal or political consequences, have framed the Russia inquiry led by Special Counsel Robert Mueller as a partisan witch hunt, despite the fact that it has already led to 17 indictments and five guilty pleas. In this alternate universe, lifelong Republicans like Comey, Mueller, former FBI Deputy Director Andrew McCabe, and even Deputy Attorney General Rod Rosenstein were deep-cover liberal operatives who have fabricated a criminal inquiry against the president for the purpose of removing him from office. In the face of such an undemocratic usurpation of power, the president’s only rational course lies in asserting unlimited authority over federal law enforcement.
Nevermind that the president’s former national-security adviser lied about discussing the removal of sanctions on Russia imposed after American intelligence agencies identified the Kremlin as being behind an effort to sway the 2016 election, or that the president’s own son lied about his attempt to acquire dirt on Trump’s Democratic rival Hillary Clinton from Kremlin agents, or that the administration lied about Trump’s direct role in dictating a false statement about the nature of that meeting. Forget the fact that witnesses have said the Trump campaign solicited election help not just from Russia but from Saudi Arabia and the United Arab Emirates. Try not to think about Trump aides lying about their contacts with Russian officials, or with WikiLeaks, the group that released thousands of emails purloined by a Russian intelligence agency in an effort to damage the Clinton campaign. Pay no attention to the president himself saying he fired the former FBI director over the Russia investigation, and that he is infuriated with his attorney general for not shielding him from it. These are not pieces of evidence that the special counsel’s inquiry is justified; they are merely evidence of the vastness of Democrats’ control over the deep state and their willingness to deploy it against Trump, which justifies anything he might do in response.
Asserting that unlimited powers are necessary to counter a grievous outside threat is a consistent feature of tyrannical governments from both ends of the political spectrum.
It is America’s great fortune that Trump lacks the utopian impulse that has so often drawn leaders of an authoritarian bent toward human catastrophe. Trump unveiled his 2020 slogan “Keep America Great” less than halfway through his term; the only indispensable ingredient in his ideal society is Trump. He does not want to make the world a better place, he does not want to create a perfect society—he merely wishes to line his pockets, shield himself and his associates from prosecution, and soak up the adoration of the crowd. American democracy may not be so fortunate with his successors.
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