Desperate times require desperate measures. The growing suspicions that Pres. Donald Trump has engaged in obstruction of justice led his attorney, John Dowd, to advance the outrageous claim that the president, by definition, cannot commit obstruction of justice.
Rarely has such a monarchical pretension emanated from the White House. The Trump Administration’s embrace of Richard Nixon’s theory of presidential power—“If the president does it, it’s not illegal”—is bizzare. How did that work for Nixon?
The Trump -Nixon theory that the president is above the law, has historical antecedents, but none in the United States. That model finds inspiration in the mid-17thcentury when, in England and France, absolutist pretensions to power were at their peak. In the English Civil Wars, King Charles asserted executive prerogatives that gravely assaulted the constitution, offenses that stirred the Brits to remove his head. In France, King Louis XIV told his countrymen: “The State? I am the State.” That reasoning led his successor, Louis XVI, to the guillotine.
The founders of the American republic laid an axe to those roots, as they dramatically rejected the English and French tradition of executive power. In fact, at the time of the American Revolution, the precise meaning of the rule of law implied executive subordination to the law. At the Constitutional Convention, delegates emphasized that the president, in the words of James Wilson, was “amenable to the law.” Wilson, destined to become a member of the inaugural U.S. Supreme Court, and the foremost legal scholar of his generation, was described by George Washington as “one of the strongest men of the Convention,” later told his colleagues at the Pennsylvania Ratifying Convention that “not a single privilege is annexed to the president’s character.” If ordinary citizens could be arrested and indicted for obstruction of justice, so too could the president.
Wilson’s words were echoed by others up and down the Eastern seaboard. James Iredell, soon to join Wilson on the Supreme Court, explained to his fellow delegates at the North Carolina Ratifying Convention, that the president may be required to stand trial for his offenses. The Framers’ commitment to the rule of law reflected the pervasive distrust of executive power at the time of the founding.
Obstruction of justice, the founders determined, was an indictable offense. It was, they concluded, also an impeachable offense. As the Framers discussed and debated a laundry list of offenses that warranted impeachment, “subversion of the laws and the Constitution” was always at the top. In a context in which the president was subordinate to the law, he could hardly be exempt from charges of obstruction, for that would place him in the fantasy world of executive immunity from the law imagined by Nixon and Trump.
It has been argued on behalf of Trump that the Framers could not have contemplated prosecution of the president, given that they conferred upon him complete authority over the execution of the laws, which includes power to control prosecutions. When Nixon acted on this theory in October of 1973, and fired Special Prosecutor Archibald Cox to thwart his investigation of the president’s role in the Watergate cover up and other criminal offenses, the nation responded with outrage. A federal court held Nixon’s dismissal of Cox illegal. It is absurd to infer that the Framers vested in the president the authority to shield himself from criminal indictment by the control granted to him over prosecutions. Certainly there is nothing in our constitutional architecture or history to suggest, let alone demonstrate, that the Framers would have undercut their own scheme to subordinate the president to the law.
The lame assertions advanced by Trump’s legal team make it imperative for the American public to remain engaged in civic education. The future of the republic requires it.
David Adler is the President of The Alturas Institute, headquartered in Idaho Falls, created to advance the Constitution, civic education and gender equality.