No, Trump has no divine right
President Trump’s shocking statement on self-pardons and his lawyers’ equally startling letter asserting absolute power over the federal investigation of Trump raise a stark question about our constitutional identity: Are we a democracy? Or does the president have the powers of an absolutist monarch?
The Founders’ writings are replete with revulsion for the absolutism now threatened by Trump. Alexander Hamilton specifically distinguished our new democracy from British monarchy in Federalist 69: “The president of the United States would be an officer elected by the people for four years; the king of Great Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable.” John Adams put into the 1780 Massachusetts constitution the concept of “a government of laws, not of men.”
Those sentiments are an alarming contrast with Trump’s declaration that “I have the absolute right to PARDON myself.”
Also troubling are his lawyers’ statements on his behalf: That his actions, “by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.”
When Trump, his advisers and his allies talk about loyalty and betrayal, they are talking about Trump, not the country. Former U.S. attorney Joe di-Genova said on Fox News that “the recusal of Jeff Sessions was an unforced betrayal of the President of the United States,” and Trump approvingly tweeted his quote. Trump’s personal counsel Rudy Giuliani has asserted that Trump couldn’t be indicted, even if he had shot former FBI Director James Comey instead of merely firing him.
Americans may still love a royal wedding, but our nation fought a revolution against monarchy and its absolutist abuses of power. That’s why we and other scholars this week told Trump lawyers Don McGahn and Emmet Flood that their administration’s legal theories are anathema in a constitutional democracy.
Trump’s attitude, in fact, flies in the face of the Constitution the Founders wrote. It imposes a duty that the president “shall take Care that the laws be faithfully executed.” The only oath spelled out in the Constitution is the president’s, and in it, the president vows to “faithfully execute the office of president of the United States.” Faithful execution is not just lofty rhetoric; it is tantamount to (and may actually be) a legally enforceable fiduciary duty to serve the people in good faith, and a duty against self-dealing.
The Constitution describes its offices as “trusts,” and just like trustees serving their beneficiaries, federal officers must serve the people, not themselves. A president may never pardon himself (or co-conspirators) or fire officials or shut down investigations in order to benefit himself to the detriment of the people. As our letter says, “The Office of the President is not a get out of jail free card for lawless behavior.”
Asked if the framers had created a monarchy or a democracy, Benjamin Franklin famously answered, “A Republic — if you can keep it.” Can we?
Jed Shugerman is a professor at the Fordham University School of Law. Norman Eisen, a senior fellow at the Brookings Institution, was chief White House ethics lawyer for Barack Obama.