Revolutionary hero Patrick Henry knew this day would come. Maybe he hadn’t expected all the details, like the porn actress in the hotel room and the illegal payment to silence her. But he feared that at some point a criminal might take over the presidency and use his power to thwart anyone who wanted to hold him accountable. “Get rid of your president,” he declared, “we will have a king.”
This is exactly what the Founders wanted to avoid by throwing off the yoke of an all-powerful monarch. But no matter how hard they worked to establish separation of powers, the system they built to hold wayward presidents accountable ultimately proved unstable.
Whatever rules Americans thought were valid are now being rewritten by Donald J. Trump, the once and perhaps future president who has already broken down many barriers and precedents. The idea that 34 felonies is not automatically disqualifying and that a convicted criminal can be a viable candidate for commander in chief upends two and a half centuries-old assumptions about American democracy.
And it raises fundamental questions about the limits of power in a second term should Mr. Trump return to office. If he wins, it will mean he has survived two impeachments, four criminal charges, civil judgments for sexual abuse and business fraud, and a felony conviction. Given this background, it would be difficult to imagine what institutional deterrents could prevent abuses or excesses.
Additionally, the judiciary may no longer represent a check on the executive branch as it did in the past. If no more cases are heard before the election, it could be another four years before the courts can even consider whether the newly elected president threatened national security or illegally tried to overturn the 2020 election, as he is accused of doing . As it stands, the Supreme Court could grant Mr. Trump at least some immunity before the election.
Analysts emphasize that Mr. Trump still needs to operate within the constitutional system, but he has already shown a willingness to push beyond its limits. When he was president, he claimed that the Constitution gave him “the right to do whatever I want.” After leaving office, he advocated “terminating” the constitution in order to return to power immediately without further elections, and promised to devote a second term to “retaliation.”
His advisers are already drawing up a sweeping plan to strengthen his power in a second term by eliminating the civil service and installing more politicians. Mr. Trump has threatened to prosecute not only President Biden but also others he considers his enemies. In fact, when Trump’s lawyers asked the Supreme Court for immunity, they argued that there are circumstances in which a president could order the assassination of a political rival without facing criminal liability.
“There is no viable historical precedent at all,” said Jeffrey A. Engel, director of the Center for Presidential History at Southern Methodist University. “The interesting thing is not that a former president was tried and convicted, as the founders might have expected, but that he continues to be a viable candidate for office, which they would have found baffling and ultimately discouraging.”
The question of how to create an empowered executive without making him an unaccountable monarch preoccupied the framers when they drafted the Constitution. They divided power between three branches of government and envisioned impeachment as a check on a rogue president. They even made it explicitly clear that an impeached president could still be prosecuted for crimes even after he was removed from office.
But even then there were voices who feared that the limit values were not enough. Among them was Henry, the patriot, famous for his “Give me liberty or give me death” speech. At the Virginia convention ratifying the Constitution in 1788, he warned of the possibility of “absolute despotism.”
“His point is that if such a criminal president comes to power, that president will realize that there are few mechanisms to stop him,” said Corey L. Brettschneider, a professor at Brown University, in his upcoming book “The Presidents and.” About Henry writes the people: Five leaders who threatened democracy and the citizens who fought to defend it.” “He even goes so far as to claim that such a president would claim the throne of a monarch .”
“My argument,” Mr. Brettschneider added, “is that this warning is all the more true given the potential immunity of a sitting president from impeachment and the impotence we have seen after two impeachment attempts.”
Robert Kagan, a scholar at the Brookings Institution in Washington, warned in his new book “Rebellion: How Antiliberalism Is Tearing America Apart – Again” that a second Trump term could lead to all-out abuse of authority.
“With all the immense power of the American presidency, with his ability to control and direct the Justice Department, the FBI, the IRS, the intelligence agencies and the military, what will stop him from using the power of the state to further his own “Political enemies?” Mr. Kagan wrote.
For Trump’s supporters and even some of his critics, such concerns go too far. His allies claim that when Mr. Trump makes provocative comments as if he were going to be a “dictator” for a day, he is either joking or pushing buttons to incite his critics. The real crisis is not a lack of presidential accountability, they argue, but the politicization of the justice system against Mr. Trump.
Jonathan Turley, a law professor at George Washington University who was in the Manhattan courtroom Thursday when the jury returned its guilty verdict, called the case against Mr. Trump “a gross political use of the criminal justice system” and a “thrill ride.” from his opponents. “What happened in this room came at a cost,” he said on Fox News. “It comes at the expense of the rule of law.”
Even some who do not support Mr. Trump argue that warnings about an unchecked executive branch are overblown. Eric Posner, a professor at the University of Chicago Law School, who in his own book called Mr. Trump a demagogue who is testing American democracy, said the former president was too “weak” and incompetent to carry out a true dictatorship .
“Trump was and is many things, most of them bad,” Mr. Posner wrote last winter in response to a column by Mr. Kagan in the Washington Post. “But he was not a fascist when he was president and he will not be a dictator if he is elected a second time.” As Mr. Trump incited a mob and spread lies to stay in power, Mr. Posner added: “He failed completely.”
American lawmakers have struggled to develop an independent mechanism to enforce presidential accountability without appearing to be so influenced by politics that he loses credibility with the public. The issue has been raised repeatedly over the past half century without reaching a consensus solution.
Nine of the last ten presidents have appointed a special counsel or independent adviser to investigate themselves or someone in their administration – the only exception was Barack Obama. (Gerald R. Ford’s campaign finances came under scrutiny during his time as vice president and did not result in indictments.)
Neither of the two who faced serious criminal charges before Trump allowed it to come to this. Richard M. Nixon avoided prosecution over the Watergate cover-up by resigning and then accepting a pardon from Mr. Ford, his successor. Bill Clinton avoided possible charges of perjury and obstruction of justice related to his affair with Monica S. Lewinsky by cutting a deal with prosecutors on his last day in office in which he admitted making false statements under oath, and gave up his law license.
Aware that Nixon had fired the first special prosecutor to investigate Watergate, Congress passed the Independent Counsel Act, which created a prosecutor theoretically insulated from politics. But Republicans became increasingly disillusioned with this model after Lawrence Walsh’s Iran-Contra investigation, as did Democrats after Ken Starr’s Whitewater investigation, so Congress repealed the law.
The special counsel who investigated subsequent presidents, including both Mr. Trump and Mr. Biden, were appointed by the attorney general at the time. Although they have considerable autonomy, they are not fully independent and therefore their investigations and conclusions have often been attacked as political, even in the absence of evidence of interference.
After enduring special counsel Robert S. Mueller III’s Russia investigation and special counsel Jack Smith’s current election interference and classified documents investigation, Mr. Trump is unlikely to appoint an attorney general who would allow Mr. Smith to continue his work work, let alone appoint a new special prosecutor to look into him.
Instead, Mr. Trump has proven that it can be politically advantageous for him to move forward relentlessly, regardless of scandals, investigations and lawsuits — at least so far. He is on track to win the Republican presidential nomination for a third time and has at least an even chance of beating Mr. Biden and returning to the White House. If he does, he will set a new standard for what is considered acceptable in a president.
“I think my biggest takeaway is how fortunate we have been as a nation to have presidents who, for the most part, have behaved with dignity or at least respected the dignity of the office,” said Lindsay M. Chervinsky, the George Washington Presidential’s new executive director Library and author of “Making the Presidency,” a book about John Adams to be published in September. “This belief highlights how violently Trump has rejected this tradition.”
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2024-06-02 09:05:04
www.nytimes.com
