The threat Donald Trump’s constitutional ambitions pose for the rule of law manifests beyond the campaign trail, writes Michael Gerhardt. Here, Trump is pictured at a campaign rally in South Carolina on Feb. 10, 2024. Credit - Win McNamee—Getty Images
You can tell a lot about presidents from their constitutional rhetoric and actions. Presidents Abraham Lincoln and Franklin D. Roosevelt excelled in fashioning compelling visions of the Constitution and constitutional ideals. Lincoln urged his fellow Americans to act in accordance with “the better angels of our nature” rather than give into the temptation of dividing the nation irreparably, while Roosevelt assured the nation that “the only thing to fear is fear itself” and pledged a “New Deal” to restore the American dream. In 1903, President Theodore Roosevelt told Congress: “No man is above the law and no man is below, nor do we ask for any man’s permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favor.”
Donald Trump is a different story. During his four years as President, he proclaimed that he had “total authority” to do whatever he wanted to do. That he was immune from any civil or criminal process for anything he did as President, that he was entitled to defy lawful congressional subpoenas without any sanction, that he could not obstruct the law since he was the law himself, and that he had the power to pardon himself. Perhaps most egregiously, he declared that he was exercising his official powers as President when he urged a mob “to take back their country” on Jan. 6, culminating in unprecedented violence and damage at the Capitol.
In his third campaign for the presidency, Trump continues to do what he does best—bullying, boasting, lying, and promising “retribution” against his political enemies. He has vowed, in a second term, to root out “the radical left thugs that live like vermin within the confines of our country.” He has promised to prosecute President Joe Biden and has previously threatened the losing candidate in the 2016 presidential election, Hillary Clinton. Trump further argues that he is entitled to an immunity he never had as President—that he has impunity from criminal prosecution for misconduct for which he was not previously convicted and removed by Congress. In short, Trump is desperate to be above the law.
This argument has been rejected in every court in which it has yet been made. In the 1980s, courts rejected the arguments of three judges who claimed they could not be impeached after they had been criminally prosecuted. Just last week, a three-judge panel of the U.S. Court of Appeals for the District of Columbia, in a thorough, well-reasoned opinion, rejected Trump’s claim he was entitled to immunity for criminal misconduct, even ordering the killing of his political rivals, for which he was not previously been impeached, convicted, and removed. The court rightly emphasized that “former President Trump’s stance would collapse our system of separated powers. Presidential immunity against federal indictment would mean, as to the President, that Congress could not legislate, the executive could not prosecute, and the judiciary could not review. We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”
Trump’s argument also conflicts with the Supreme Court’s decision in 2020 while he was in office, that a sitting President may be subject to state criminal investigation. The Court said nothing about an impeachment conviction as a prerequisite for criminally investigating a President, because there is none.
The threat Trump’s constitutional ambitions pose for the rule of law manifests beyond the campaign trail. He asked his fellow partisans in the House, once they retook control in 2022, to impeach President Biden because “they did it to me.” The House Republicans, under former Speaker Kevin McCarthy and current Speaker Mike Johnson, who was an architect of Trump’s plan to overturn the 2020 presidential election, have obliged. While impeachment hearings have given Republican House members free airtime to trash the President, even some Republicans have conceded there is no evidence Biden committed any impeachable offenses.
Differences between the Republican leadership and President Biden over immigration policy are at the root of the effort to impeach Secretary of Homeland Security Alejandro Mayorkas, an attempt that fell short earlier this week, with the final tally coming to 214-216. That vote, the first of what will likely be many attempts to impeach Mayorkas, reaffirmed that policy disagreements are illegitimate grounds for impeachment. Indeed, the framers rejected including “maladministration” as a basis for impeachment in the Constitution, meaning that they rejected extending impeachment to incompetent or poor performance in office. Moreover, the first President to be impeached, Andrew Johnson, fell one vote short of conviction in the Senate based on the recognition that it was inappropriate to use the process to address Congress’ policy differences with President Johnson. As Chief Justice William Rehnquist, appointed by President Reagan, explained in his book, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson, Johnson’s acquittal clarified that “impeachment would not be a referendum on the public official’s performance in office.”
In the meantime, Republican House members’ relentless investigations into the misconduct of President Biden’s son, Hunter, are nothing more than extensions of an already discredited defense Trump raised against his first impeachment—namely that, as Vice President, Biden fired a Ukrainian prosecutor to protect his son from investigations into a company on whose board Hunter then sat. Then-Vice-President Biden was not only following President Obama’s foreign policy priorities, but he was also removing a prosecutor who was widely considered corrupt. Nothing problematic has been uncovered since, except Republican rhetoric has become increasingly over-heated.
Moreover, the House’s months-long investigations into Hunter’s legal troubles contradicts the directives of the Supreme Court. In Trump v. Mazars in 2020, the Supreme Court declared that a congressional subpoena is valid only if “it is related to, and in furtherance of, a legitimate task of the Congress.” The Court recognized that a fishing expedition was not “a valid legislative purpose.” The Court further emphasized that the House has no legitimate purpose in giving itself power over “law enforcement,” because that power belongs to the President and the Justice Department, not Congress. This has not stopped several Republican House members from engaging in wild speculation and accusations of criminal misconduct on the part of both President Biden and his son. Speaker Mike Johnson has called the Biden family “hopelessly corrupt,” though the Republicans’ own expert witness, Professor Jonthan Turley, said in the one hearing on President Biden’s possible impeachment last September that he did not “believe that the current evidence would support articles of impeachment.” Turley, as well as moderate Republicans in the House and Senate, have said there is no evidence Secretary Mayorkas has committed any impeachable offense.
None of that will stop Speaker Johnson from persisting to impeach Mayorkas. His starkly partisan agenda is evident from his urging the impeachment of Mayorkas rather than supporting the bipartisan bill negotiated in the Senate to bolster security at our southern border. His priorities are seemingly to try and damage Biden, rather than solving the border crisis.
Perhaps Trump and his supporters’ most dangerous constitutional declaration has been in response to the controversy over section 3 of the 14th amendment, the meaning of which was at the heart of a Supreme Court argument this past Thursday. Democratic members of the House and well-respected constitutional scholars contend that the section, which provides that anyone who has “engaged in insurrection” is ineligible to hold federal office, renders Trump ineligible to run for or serve again as President. Trump has predicted “bedlam in this country” and “big, big trouble” if he loses that and other cases in which he is being charged with fraud and misconduct.
If Trump’s bellicose language is familiar, it is because it should be. His fluency in making threats of violence was nowhere more on display than Jan. 6. Trump encouraged his supporters “to fight back” and “to take back their country,” then urged them to march to Congress. By now, most of us have seen the videos of those people damaging the building and vowing to kill then-Speaker Nancy Pelosi and then-Vice-President Mike Pence.
It is hard to imagine a more dangerous (and flawed) claim than that fear of violence should trump (no pun intended) the rule of law. Congress did not allow the violence on Jan. 6 to prevent it from certifying the outcome of the 2020 presidential election later that same day. Nor did the Supreme Court allow threats of violence to dissuade it from deciding important constitutional decisions during the Civil War and both world wars. Threats of violence did not dissuade the Court from striking down state-mandated segregation of the races in public schools. Nor have such threats led lower federal courts to reject Trump’s most outlandish claims.
As, for instance, did the Federal Court of Appeals in dismissing Trump’s claim of immunity from any criminal prosecution for misconduct for which he had not been previously impeached, convicted, and removed from office. The Supreme Court, based on oral arguments on Thursday of this week, appears prepared to rule in Trump’s favor in his lawsuit challenging state officials taking his name off the ballot in the Republican primaries for President.
Regardless of how the court rules on Trump’s lawsuit challenging his removal from the ballot in Colorado, it is worth remembering that, at the end of Trump’s second impeachment trial, even Mitch McConnell, Republican leader in the Senate, condemned Trump’s actions in inciting supporters to storm the Capitol. Indeed, Trump’s counsel conceded in his oral argument before the Supreme Court this week and characterized the events on Jan. 6 as a “shameful, violent riot.”
In 1776, Thomas Paine told the world that, in the free republic which America aspired to become, “the law is king.” The Constitution made good on that proclamation in ensuring that, in this country, no one was above the law. But Trump and his allies will no doubt continue to challenge that principle in the weeks and months ahead. Trump has recently suggested he will be too busy making America great again to wreak revenge on his political enemies. That off-hand comment did not last long, as Trump, flush from winning political primaries in Iowa and New Hampshire, has returned to making outlandish promises of vengeance against anyone who disagrees with him. Next fall’s election, even more than the last, will test whether the Constitution and its democratic safeguards, not revenge or threats of violence, will be as the Constitution says, “the supreme law of the land.”
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