By David R. Schleicher
Can an American president be indicted? Can he pardon with impunity? Refuse to answer a prosecutor’s questions? Do the answers to these questions lie in legal precedents? Historical practices? The resolution is in something more fundamental: a decision on whether we have a president or a king. And the question becomes more relevant by the day.
Consider this presidential tweet from Monday morning: “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?” No doubt Lin-Manuel Miranda could set this to music in a tune that would rival “You’ll be back” for its catchiness.
Thoughts of presidential impunity do not stop at the Oval Office. The president’s lawyers sent (and likely leaked) a “confidential” 20-page letter to Special Counsel Robert Mueller that asserted not merely that Mueller could be fired but that Trump had the right to kill the investigation itself regardless of who was at the helm.
Rudolph Giuliani argues that theoretically Trump could shoot former FBI director James Comey and could not be indicted for it. (Psst…Jim…avoid the middle of Fifth Avenue.)
Every day more institutions are attacked and more norms fall. To be expected if he’s a king. Intolerable if he’s a public servant. Handing pardons out like candy is another royal prerogative.
Mixed American emotions about the king-versus-public servant issue are nothing new. As much as many Americans of 1776 loathed Great Britain’s King George III, others did not hesitate to regard George Washington as worthy of royal treatment.
It was in May 1782 that military commander Lewis Nicola wrote the “Newburg letter” to Washington, proposing he establish an American monarchy. Washington responded that if Colonel Nicola had any regard for his country, for himself or his descendants, or respect for Washington, Nicola would banish such thoughts from his mind and never again communicate them.
President Washington declined even a third term in office. He wrote the governor of Connecticut that he wished to keep his promise not to seek unfair power as a government official and to avoid accusations of harboring “concealed ambition.”
By contrast, our current American president praised a foreign leader for having ensured he would hold office for life, joking that “maybe we’ll give that a shot someday.” Nixon had argued that when a president acted to protect what he thought was national security, his actions by definition were legal.
When President Clinton was sued by Paula Jones, he argued the case should be delayed till he was out of office. The risk of disruption to his official duties, he contended, outweighed her interest in a prompt resolution.
The Supreme Court unanimously rejected the argument as to Clinton’s pre-presidential conduct. The court observed that even Clinton did not argue he was entirely above the law and did not dispute that from the “birth of the Republic” the country rejected the idea of a president as king who could do no wrong, think no wrong.
A unanimous Supreme Court in 1974’s U.S. v. Nixon held that presidents have strong interests in protecting a variety of secrets. Yet it went on to rule that a generalized claim of executive privilege was overcome by constitutional interests in ensuring fair criminal trials. As in the Clinton case, the court found no basis for concluding that a president is “above the law.”
It would be an odd outcome for a president, charged by the Constitution with faithfully executing laws, to be the one person exempt from them. The Declaration of Independence reminds us that governments “derive their just powers from the consent of the governed.”
Among the grievances listed there against the king were obstructing the administration of justice and making judges “dependent on his Will alone” for how long they remained in office and how much they were paid. The Founding Fathers concluded that a monarch whose actions are consistent with those of a “Tyrant, is unfit to be the ruler of a free people.”
If the American experiment in democracy has failed, let’s openly admit it and move on. If we instead continue to seek a government of the people, by the people, for the people, then we must join Jefferson in demonstrating “eternal hostility against every form of tyranny.”
Even when it appears in good economic times. Even when many agree fundamental changes are needed. Even when our highest paid ministers declare him chosen by God. The ancient proverb extends to kings and countries: “pride goes before destruction; a haughty spirit before a fall.” An aspiring king grabs power in a day; it takes centuries and revolutions to contain one.
David Schleicher is an attorney who splits his time between Waco, Washington and Houston, and his practice between representing businesses and federal employees. This column originally appeared in the June 5, 2018 Waco Tribune-Herald.