Merry Christmas!!! Here’s a wonky one about the Constitution and the President. Enjoy – and have a great holiday!!!!!
One President, One Power
It’s an interesting theory, the Unitary Executive Principle. And it actually makes some sense. It says that the President of the United States is the Chief Executive of his branch (The executive power shall be vested in a President of the United States of America, US Constitution, Article 2, §1); and therefore everything done by departments, agencies, and members of the Executive Branch are done in his name. So, continues the theory, when the Justice Department investigates other actions of the Executive Branch, particularly the President himself, the investigation is being done with the tacit consent of the President himself, since he is literally investigating himself.
This would mean that the President can stop any investigation by his branch that he chooses, as he is the ultimate boss. Firing FBI Director James Comey, or Deputy Attorney General Rod Rosenstein, or Special Counsel Robert Mueller, would all be “OK;” it’s all under his purview as President.
And it also means that the President is “incapable” of obstructing justice. Any interference or lying he would do to the investigators is “OK;” he’s just lying to his own employees. And it allows him to communicate with his employees: talking to Acting Attorney General Matt Whittaker about the Mueller Investigation would be just fine. (Note – this would not be true about lying to the Courts or to Congress – as they are separate and co-equal branches. But HIS Justice Department couldn’t bring charges on those lies, as he would be “charging himself.”)
This is the basis of the “legal” defense of President Trump. Rudy Giuliani tries to explain it, though he often seems to get lost in the process. Alan Dershowitz condescendingly pushes it on Fox News, and the new candidate for Attorney General, Bill Barr, put the theory at the heart of his unsolicited twenty page memo to the Justice Department and the White House, his “try-out” for the job.
They say the ONLY way to stop a “criminal” President is through the Impeachment and Removal process of Congress. Other than that, to use the famous Trump example, he could shoot someone in the middle of Fifth Avenue and no one would do anything.
But the Unitary Executive Principal flies in the face of the Constitutional concept of “equal protection” under law (US Constitution, Amendment 14,§1 .) It also ignores the wording of Article II and the intent of the Founding Fathers.
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. (US Constitution, Article 2, §2, paragraph 1).
He is the Commander in Chief of the military. That is his “commanding” role. He may require the opinion of the principal officer of the departments (confirmed by the Senate per Article 2, §2, paragraph 2) and while he is invested with the “Executive Authority,” that authority is not the absolute power of a king, nor is it constitutionally the same power as Commander-in-Chief. If the founding fathers had wanted it to be, they would have said so (yes – for this moment I do sound like the Federalist Society!)
The Founding Fathers never wanted a President who was a “scofflaw,” unwilling to abide by the laws that bind all citizens. They saw the Presidency as a carefully circumscribed protector of those laws, and all citizens.
The President of the United States is Constitutionally required to “…preserve, protect and defend the Constitution of the United States,” (Article 2, §1, paragraph 8.) A President who is using the powers of his office to further his own personal gain, or to hide his own criminal activity, is clearly not fulfilling that obligation. A President might legally be able to pardon, but if he does so with the intent of hiding his own crimes, he would still be violating the law by obstructing justice. The pardoned person would probably remain pardoned, but the President would have committed an offense.
The United States NEVER conceived of a Presidency of absolute power. George Washington didn’t claim such a thing, and in fact, went to great lengths to avoid it. Abraham Lincoln, faced with the greatest Constitutional crisis of our history, pushed the envelope of executive authority by exercising his plenary power as Commander-in-Chief, but that was quickly reined-in after his death and the end of the war. Nixon didn’t even make such a claim as he orchestrated a criminal conspiracy from the Oval Office. He made his deal and left.
Which, by the way, I would be perfectly content to have Trump do. Conspiracy to defraud the United States, acting as an unregistered agent of a foreign country, obstructing justice, lying to Federal investigators, and violating the emoluments clause of the Constitution are all crimes he may have committed. Resign and take your family with you. I’m sure there’s a deal to be made, letting you keep some of your “Trumpers;” before you put the nation through another Impeachment and our first Removal from office.
