When the Constitution was written, the folks who wrote it did everything they possibly could to get away from a monarchic form of government. They made all the people with power subject to election and to the rule of law, and they split the powers of the government between three branches: executive, legislative, and judicial. That seemed like a good way to do it; no one branch could overtake the other, and there was accountability so that if one got out of hand, the others could deal with them until order was restored. The few executive powers that resembled those held by a monarch were limited to benign or even restorative abilities, such as the power of the pardon. The Founders probably thought this would be sufficient; they had the optimistic yet cautionary view that we were inherently good but that firm control via common sense and the ballot box would be enough.
They didn’t take into account the possibility that we would get Trump.
The 20-page memo from Trump’s lawyers to Robert Mueller, written in January and leaked by the New York Times on Saturday asserts that the president has the power to do whatever he wants in terms of controlling the Department of Justice; fire the director of the FBI, terminate an investigation, pardon himself for anything he might have done while in office, and basically assume the powers of an authoritarian without worrying that anyone in the executive branch can stop him.
Indeed, 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. 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.
People who have been to law school and have read this memo say that it is deeply flawed in both legal and logical terms. The attorneys cite outdated statutes and take positions that stretch reason beyond the absurd. But it is an insight into the defense strategy that will be mounted on behalf of Trump and sold to the GOP base at rallies as black-letter law: Trump is above the law and it’s good to be the Trump.
The only people who can bring an action against the president for violating the law or the Constitution is Congress. They have done so twice in living memory: the articles of impeachment against Richard Nixon and the actual impeachment of Bill Clinton. At those times — 1974 and 1998 — the Congress was held by the opposition party to the president, which means that their desire to prosecute the president was inherently a political one. This time it’s different. Trump is nominally a Republican, as is the House and Senate. So the question then becomes do the people who have the power over the term of the current president believe more in the rule of law than they do in the integrity of their own party, their re-election, and their conscience that speaks to them when they’re outside of the glare of TV cameras and soundbites.
We decided over 200 years ago that we didn’t want a monarch any more (even if we do watch their royal weddings on TV) and gave ourselves and our elected representatives the power to control those who assume they have powers beyond those granted by law. Whether or not Congress decides to do anything about that tells us more about the future of this country and our path forward as a constitutional democracy than the results of an election.