Jonathan P. Baird

“…Presidents are not kings.” Those powerful words from Judge Ketanji Jackson of the Federal Court in Washington D.C. resonated for millions of Americans. Judge Jackson is the judge who presided over the case about whether Donald McGahn, the president’s former attorney, must comply with a Congressional subpoena to testify before Congress.

At issue is whether McGahn can be compelled to testify where the President claims executive privilege prohibits it.

Actually the President is not just claiming executive privilege. He is claiming absolute immunity from prosecution and even investigation. The President and his lawyers are saying such absolute immunity applies to himself, his staff, and his senior aides, even those who no longer work for him.

This is a staggeringly broad assertion of presidential authority. It is also one that has no basis in legal authority. As Judge Jackson made clear in her opinion, absolute immunity is “a fiction that has been fastidiously maintained over time through the force of sheer repetition”.

In other words, there is nothing behind the claim of absolute immunity. Trump and his team made it up. Whether it is for purposes of delay (running out the clock) or some other agenda, Article II of the Constitution provides no such extreme privilege. Executive privilege is a very different beast than absolute immunity; it is narrower and more nuanced.

Trump is trying to place himself above the law. He has said that Article II of the Constitution gives himself the right to do whatever he wants as President. He argues that he cannot be indicted while in office. Whether it is New York state prosecutors seeking information about hush money payments he made to two women or House committees seeking his tax returns, he stonewalls.

Trump’s lawyers did actually argue in a federal appeals court that Trump could shoot someone in broad daylight on Fifth Avenue and face no criminal consequence because he is immune from prosecution while in office. Apparently, the role of the Department of Justice is to help him get away with it.

If we step outside the bubble that is Washington DC partisan politics, the absurdity of this position is immediately observable. The President has a good faith constitutional duty to faithfully execute the laws. There is almost no constitutional support for the assertion that a sitting president cannot be indicted. The Department of Justice has a long-standing policy not to indict a sitting president. A policy is not law. It is, at most, persuasive authority.

Congress needs to clarify that a sitting president can be indicted for criminal activity, including obstruction of justice.

I am amazed at the buy-in of conservatives and many Republicans with Trump’s dictatorial view of executive power. I thought conservatives believed in limited government.

Trump is failing to abide by the Constitution in not recognizing the three co-equal branches of government. In the Trump view, there are no checks and balances – only an all-powerful Executive. In his actions, Trump treats Congress as an inconvenience and a nuisance to be strong-armed. Not only does he refuse to share power, he impedes all Congressional investigations by refusing to provide documents and witnesses. What Congress does is “a hoax” or “a witch hunt”.

After criticism for his decision to host a G-7 Summit of world leaders at his Doral, Florida resort, Trump called the emoluments clause in the Constitution “phony”. I do not recall any president ever disparaging provisions in the Constitution, whatever they privately felt.

James Madison had predicted that elected leaders could become intoxicated with power and might seek greater power for themselves. That is exactly what is happening now.

It is worth recalling that our nation was founded in a rebellion against the British monarchy. The Founders were quite conscious of Europe’s miserable history of despotic regimes subject to the church and monarchs. The design of the three co-equal branches was an effort to avoid an American tyrant-in-charge. The Founders famously worried about power corrupting.

Trump is like an embodiment of those fears. Even worse, is the fantasy world he has constructed through his tweets and public utterances. He won by a landslide. He was the victim of illegal voting and he really won the popular vote. The Ukrainians, not the Russians, interfered in the 2016 election. In the matter of who interfered in 2016, Putin, not the American intelligence services, is a more reliable source. This administration has gotten more done than any other administration.

Destroying facts through the constant repetition of lies and the degradation of words has been part of how totalitarian regimes rule. By October, the Washington Post Fact Checker database found that Trump had made 13,435 false or misleading claims during his presidency. Trump is following a well-established playbook where words become meaningless.

Trump jokes about not leaving office. Although the Constitution limits presidents to two terms, Trump has repeatedly raised the possibility that the people will demand he stay longer. He has praised Chinese President Xi Jinping for being president for life and has said maybe we should give that a shot someday.

One does have to wonder whether Trump sees himself as a temporary custodian of the presidency. Trump’s ex-lawyer Michael Cohen warned that if Trump were to lose the 2020 election, he would not permit a peaceful transition of power. For Trump, the presidency is the ultimate business opportunity to sell his brand.

For those who think Trump is joking about staying on after two terms, I think of the writer Masha Gessen who has written, “Believe the autocrat. He means what he says…humans seem to have evolved to practice denial when confronted with the unacceptable”.

It is not at all clear that checks and balances will save us. Removal by impeachment takes two-thirds of the senate, a daunting number. So far, Senate Republicans have remained cowardly sycophants.

Trump is not a normal bad president – he is an existential threat. He has eroded the rule of law. He delegitimizes judges who rule against his policies. He has tried to undermine free and fair elections both in 2016 and 2020. He claims an absolute right to pardon himself.

As a pathological liar, a sexual predator, a serial tax-avoider, a race-baiter, and an election-corrupter, Trump has more than earned impeachment and removal from office. The problem would seem to be that Republicans are placing party loyalty over constitutional responsibility. Fear of the political cost of defying Trump controls behavior.

If Trump does not face consequences for his corruption, it is predictable he will be empowered toward his goal of being an autocratic strongman, without regard for any ethical or legal limits. Whether we survive as a constitutional democracy is an open question.

There is no certainty how events will unfold. Without vigorous resistance, we could end up with a king for president.