Yeomans Work

Trump’s Continuing Confusion: Monarch or President?

December 11, 2017

This week Trump and the Republican Party continued their march toward installing an American version of the French Bourbon monarchy.

Others have noted at various crisis points in the Trump administration that he seemed not to understand that the simplicity of absolute monarchy was inconsistent with our constitutional structure. Trump, nevertheless, has relentlessly embraced the essence of monarchy through his attacks on Congress, courts, the law enforcement and intelligence communities, and the press, and by installing his family and lesser “nobles” in positions of power. Recently, his personal lawyer unleashed the final step by declaring that, as president, Trump could not obstruct justice because he is the supreme and unaccountable head of the executive branch. Louis XIV would have approved.

Meanwhile, Trump pushed Republicans in Congress to pass a tax bill that will transfer an astonishing amount of wealth from working stiffs to the people who need it least. Marie Antoinette would have approved. We can be certain that Louise Linton, Marie’s modern incarnation and wife of Treasury Secretary Steve Mnuchin, is already contemplating ways to spend her new millions, with encouragement from her husband.

The contention that the president cannot obstruct justice is ludicrously at odds with our constitutional structure. It bears repeating that the framers were acutely conscious of the dangers of absolute executives. They had just escaped the control of a monarchy and set out to establish a government of separated powers in which each branch exercises checks over the powers of the others, all according to the rule of law. The first and indispensable rule for a society operating according to the rule of law is that no person is above the law. That must include the president, or we operate according to the lawless whim of one person. If a president can block an investigation into his own conduct, he can exercise power without accountability.

Congress has consistently recognized that presidents can be held to account for obstructing justice. The first article of impeachment adopted by the House Judiciary Committee against Richard Nixon stated that he “prevented, obstructed, and impeded the administration of justice.” More specifically, it stated that he did so by “interfering or endeavouring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees.” The articles of impeachment adopted by the House against Bill Clinton similarly relied in part on an obstruction charge.

Commentators repeatedly mislead by discussing obstruction in terms of criminal violations. Trump is not likely to be prosecuted while in office. Mueller would have to convince Deputy Attorney General Rod Rosenstein to override existing Department of Justice policy to do so. That appears unlikely. While a criminal conviction requires that a judge or jury find beyond a reasonable doubt that a statute has been violated, impeachment does not. It is well established that impeachment does not require a violation of the law. Rather, a president can be impeached and removed for conduct that violates the public trust, whether it is criminal or not. And the reasonable doubt standard does not apply.

Despite these powerful precedents, Trump’s lawyer, John Dowd, asserted Trump could not obstruct justice. The assertion came as the White House scrambled to manage the news of Michael Flynn’s guilty plea. After a Trump tweet suggested that he had known that Flynn lied to the FBI before he fired him (strengthening the obstruction case against Trump), Dowd claimed (implausibly) that he had written Trump’s tweet. He followed with the assertion that none of it mattered because Trump could not obstruct justice. Meanwhile, Trump lashed out by attacking the FBI and Mueller.

All of this spewing from the White House could be strategic. Trump and his lawyers seem to understand that the obstruction case against him is powerful, so they have 1) moved on to the argument that the evidence doesn’t matter because Trump cannot be charged with obstruction of justice and 2) intensified attacks on the institutions conducting the investigation. Both of these ploys are designed to build public opposition among Trump’s base to any attempt to hold him accountable.

More insidiously, the attacks on law enforcement institutions threaten to undermine the legitimacy of their findings. The White House and members of Congress have ramped up frivolous allegations of bias within the FBI and Mueller’s team. These allegations lay the foundation for firing Mueller and rejecting the validity of the findings of the investigation.

On the other hand, it can be foolish to attribute calculation to this president and his legal team. All of this may simply demonstrate the incompetence of the legal team and Trump’s propensity to lash out viciously at all challengers.

As the Russia investigation noose tightened, Trump embraced another Bourbon instinct by celebrating Senate passage of the least progressive tax cuts in modern history. Republicans in the Senate – desperate for a legislative accomplishment before year’s end, especially one that would please their big-money donor base – crafted an astonishingly sloppy, ill-conceived and regressive tax bill. Eschewing any sense of procedural regularity, they scribbled out amendments on the floor as they arrived straight from K Street. The result was a massive tax cut that would funnel wealth to the investor class and eventually cost a majority of Americans money. And who will benefit most? Trump. He cheered from the sidelines (he doesn’t get involved in substance because, well, it’s hard) as the Senate folded in special favors for owners of private planes, real estate developers and the heirs of large fortunes. You couldn’t make this stuff up – but the Senate passed it! It is almost as if Trump and his cronies are rushing to pocket as much lucre as possible before it all ends.

Estimates state the bill would add between $1.4 and 2.2 trillion to the national debt over ten years. That alone would not be cause for concern, but for two things. First, this is absolutely the wrong time in the economic cycle to be incurring massive new amounts of deficit spending. The economy is cooking, and simply does not need stimulus from borrowed money. When the good times end, as they will, we will have seriously diminished our options for stimulating the economy. Most disturbing, the very Republicans who support stripping all of this revenue from the government will argue that the increasing debt requires cuts in Medicare, Medicaid, and other social welfare programs. The losers in the tax bill would be slammed again by a reduction in government benefits.

Restructuring of the rules by unaccountable autocrats to concentrate more wealth in their hands is too familiar, and does not end well.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.