The Constitution, like its Framers, roundly rejects an imperial presidency

In the movie “Private Parts,” an NBC radio executive reports that people who like shock jock Howard Stern listen to his radio show for over an hour daily. He explains that the most common answer to the question of why Stern fans listen for so long is that they “want to see what he’ll say next.” People who hate Stern listen for over two hours. The reason? They “want to see what he’ll say next.” The same can be said about President Trump: love or hate the president, people cannot wait to hear what he says next.  

A case in point: In the past several days, the president grabbed headlines and provoked controversy through a tweet and a leaked letter his lawyers sent to Robert Mueller, the special prosecutor investigating possible collusion between Trump’s campaign and Russian officials. Trump and his lawyers made four bold claims — that the president has the power to pardon himself; Mueller’s appointment was unconstitutional; the president does not have to comply with a subpoena; and a president cannot obstruct justice because he is in charge of all federal investigations and prosecutions.  

{mosads}These claims are reminiscent of the imperial presidency, a term that historian Arthur Schlesinger Jr. popularized in 1973, referring to Richard Nixon’s presidency becoming uncontrollable and exceeding its constitutional limits. Trump and his lawyers plainly believe these claims have merit. They do not. They are dangerous, wrong and contrary to the Constitution.  

Foreshadowing Trump, Nixon once mused that it was impossible for presidents to act illegally. Trump’s lawyers recast this claim as the president cannot be subject to subpoena or obstruct justice. Of course, he can. The Supreme Court unanimously ruled that Nixon had to comply with a subpoena demanding he turn over conversations taped within the White House. If there is a strong need for disclosure, the president usually must yield.

Moreover, nearly every Republican member in the House and Senate in the late 1990s approved an impeachment article charging President Bill Clinton obstructed justice in efforts o hide and commit perjury about his sexual relationship with a former White House intern. More than two decades earlier, the House Judiciary Committee approved an impeachment article charging that Nixon obstructed justice. Both impeachment articles were supported by detailed references to presidential statements and actions.  

A breach of trust or an abuse of power is a classic example of an impeachable offense. Just because the president oversees the executive branch, including the Justice Department, does not mean he can direct or stifle investigations as he likes. The Constitution does not grant anyone absolute power.  

President Trump’s lawyers contend that he is above the law. This is the core claim of the imperial presidency, which our Constitution roundly rejects. It would be ironic, to say the least, that the founding generation that rebelled against a king intended to create one. In talking about the presidency in the constitutional and ratification conventions, the framers invariably distinguished the office from a king. The Framers created the presidency largely to keep Congress in check.

It follows that the president does not have “absolute” power to pardon himself. The Constitution vests the president with the power “to grant reprieves and pardons”; “to grant” means to give someone else something. There is no indication the Framers meant the president could use this power to shield himself from inquiries into possible corruption. Just the opposite; several, including James Madison, characterized any use of the pardon power as a “shield” to hide presidents’ bad acts as an impeachable abuse of power.  

Trump is the first president to claim such authority. In making this claim, he bypassed the Justice Department, which had, four days before Nixon’s resignation, concluded that the president does not have the power to pardon himself. This week, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) agreed, declaring: “If I were the president … and I had a lawyer that told me I could pardon myself, I think I would hire a new lawyer.”

Questioning the constitutionality of Mueller’s appointment is not on any firmer ground. Claiming that Mueller is the type of official who should be nominated by the president and subject to Senate confirmation runs contrary to Supreme Court precedent upholding that a special prosecutor may be appointed by a department head and is subject to removal for misconduct by his superiors. Mueller’s superiors are Attorney General Jeff Sessions, who recused himself in the Russian investigation, and Deputy Attorney General Rod Rosenstein, who has said there is no basis for thinking Mueller has engaged in misconduct.

If Trump acts on any of his claims, there are three venues where he could be checked. The first is court. Judges are likely to defer to the broad scope of the pardon power, even if the president pardons himself. If Trump were to dismiss Mueller, that might require courts to reconsider the Supreme Court’s 1988 ruling that special prosecutors can be appointed or removed by officials other than the president.  

That brings us to Congress, where we would go, too, if Trump were to pardon himself or fire Mueller, the attorney general, or deputy attorney general. Nixon famously forced the resignations of his attorney general and deputy attorney general to find someone who would fire the Watergate special prosecutor. The move merely hastened Nixon’s resignation.

This leads to the final venue, the public. Trump can test his claims in the midterm elections, to see whether he can do no wrong insofar as his public is concerned.

If Trump makes good on some or all of his claims with no pushback from the public or Congress, then the imperial presidency lives again. They can stop him. If not, any victory he enjoys will become a precedent that places the presidency above the rule of law and the Constitution.  

Michael J. Gerhardt is the Samuel Ashe Distinguished Professor in Constitutional Law at the University of North Carolina School of Law. He has served as special counsel, public commentator, and testified before Congress on major constitutional conflicts between presidents and Congress, and is the author of the forthcoming book Impeachment:  What Everyone Needs to Know (Oxford University Press).