As the norm-shatterer-in-chief, President Trump has altered the American presidency forever. He also took an oath to “preserve, protect and defend the Constitution of the United States of America.” So what is the unconventional Trump presidency doing to the Constitution, anyway?
The stakes are extremely high. The idea behind the Constitution’s structure is simple: If we constrain government power by design, then individual rights and freedoms will endure, regardless of which political party controls the White House and Congress.
{mosads}Trump’s constitutional maneuvering is forcing a re-thinking of this foundational tenet of the Constitution.
Here are some highlights:
Emoluments Clause. In a sharp departure from historical precedent, Trump refused to divest himself of myriad business holdings associated with his global brand. The Constitution bans presidents from accepting “any present, Employment, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” The notion is that we don’t want foreign governments corrupting our nation’s leaders with alluring kickbacks and other goodies.
You get the idea: Power corrupts even the noblest of human beings, so the Constitution put a lid on it.
Courts are now grappling with whether the Constitution cares that President Trump continues to personally profit from foreign governments patronizing his hotels.
One judge dismissed one such case on the dubious theory that courts can’t do anything about the Emoluments Clause — it’s exclusively Congress’s problem. But the current Congress is uninterested in seriously policing this president’s compliance with the Constitution. What that means is that the Emoluments Clause could become a dead letter post-Trump.
Pardon Power. Trump made waves with his first use of the constitutional pardon power to deactivate former Arizona Sheriff Joe Arpaio’s conviction for violating a federal court order stopping his office from detaining immigrants not suspected of crimes.
Trump also pardoned Scooter Libby, the former chief of staff to Vice President Cheney who was convicted of perjury in connection with the leak of a CIA officer’s identity. But the Arpaio pardon is more constitutionally significant because it revealed Trump’s willingness to use Article II power to undo actions by another branch of government, the judiciary, while still in office.
If he pardons those targeted by Robert Mueller’s investigation into his campaign’s ties to Russia (think Paul Manafort or Michael Cohen), the question for the Supreme Court would be whether it is constitutional for a president to employ Article II to frustrate an investigation of himself. In a functioning democracy, this is serious stuff.
Obstruction of Justice. We’ve seen this one before. The House of Representatives charged two presidents — Nixon and Clinton — with obstruction of justice in impeachment proceedings. But the Trump team has suggested that a president cannot be liable for obstruction of justice as a constitutional matter. The idea is that the president is the boss of the executive branch, which enforces the laws. Law enforcement officials can decide not to prosecute certain cases. So, the logic goes, the president can “call off the dogs” on anyone, including himself.
There has been speculation for months that Trump might sack Deputy Attorney General Rod Rosenstein, and/or Robert Mueller — just as he fired former FBI Director James Comey — to get criminal investigators off his back. There is also talk that he will zealously use pardons to frustrate the Mueller probe.
Both maneuvers would trigger obstruction of justice questions under the criminal laws. Whether anything could be done about that under the Constitution (short of impeachment) is a question that puts the scope of presidential power up for grabs. Its resolution will have untold consequences for future generations.
The president and the grand jury. At this point, there are no easy outs for President Trump when it comes to the Mueller investigation. If he testifies under oath, he is at serious risk of perjuring himself. If he refuses, he could face a subpoena, which he could seek to quash on constitutional grounds — the theory being, once again, that a president is immune from criminal process by virtue of his Article II powers. This maneuver would likely fail. The Supreme Court already rejected both of Nixon’s attempt to evade a subpoena for his tapes as well as Clinton’s challenge to a subpoena for a deposition in a civil lawsuit.
If Trump were to find himself similarly situated, he could refuse to testify, claiming his Fifth Amendment right against self-incrimination. But even more Trump-esque, he could ignore a court order directing that he testify and instruct the U.S. Marshal’s service not to enforce it (in the typical case, a party that refuses to comply with a court order faces arrest and jailtime for contempt). It is fair to stay that all measure of constitutional hell could break loose at that point.
Prosecuting a president. Whether Mueller’s team can constitutionally charge and prosecute Trump for criminal wrongdoing is unchartered territory at the Supreme Court.
To be sure, Clinton’s Justice Department wrote a memorandum concluding that such a prosecution would be constitutionally improper. But both Kenneth Starr (Whitewater) and Leon Jaworski (Watergate) reached the opposite conclusion, on the theory that the president is not beyond the reach of the criminal laws. Thus, there remains a serious constitutional debate over whether impeachment is the only legitimate way to hold a president accountable for violations of the rule of law.
All told, the Trump presidency is poised to reconfigure our constitutional structure of accountability forever. Because Congress is “out to lunch” when it comes to serious oversight of the executive branch, the federal courts must do the job of all three branches if we are to survive this constitutional ordeal. To be clear, that job that is above politics and ideology. It is about ensuring that what the Constitution’s framers feared most — unbridled government power that curtails individual rights — does not come to pass.
Kim Wehle is a professor of Law at the University of Baltimore School of Law, former assistant United States attorney and associate independent counsel in the Whitewater Investigation, and frequent legal commentator on MSNBC and CNN.