“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.