Impeachment, Supreme Court

Donald Trump, Constitutional Ignoramus

He doesn’t understand the first thing about the charter he has sworn to “preserve, protect and defend.”
October 16, 2019
Featured Image

Conservatives and Republicans can cloak themselves in the Constitution—they can name a magazine after the famous essays defending the Constitution or say they are committed to the study of statesmanship and the American Founding—but they have enthusiastically embraced a president who knows nothing about the Constitution. And who does not care to know anything about it.

Put aside the emoluments clauses in Article I, Section 9 and Article II, Section 1 which have been the subject of genuine textual disagreement even if the norm and principle of not using public office for private enrichment is obvious and easy to comprehend.

Put aside the narrow definition of treason in Article III, Section 3, which is limited to levying war against the country or giving aid and comfort to its enemies. Accusing Speaker Nancy Pelosi and Representative Adam Schiff of treason is the sort of hyperbole—dangerous though it is—we’ve become accustomed to from President Trump.

Put aside that Trump says Schiff should be “questioned at the highest level” for his statements in the House about President Trump. Article I, Section 6 commands that members of Congress shall not be punished or questioned in a legal proceeding about their “Speech and Debate in either House.” It’s the original free-speech clause, allowing for robust political debate in Congress.

Put aside Trump’s call for Senator Romney to be impeached for questioning Trump’s behavior. The Constitution does not provide for the impeachment of senators, although Article I, Section 5 does allow each house of Congress to expel a member with a two-thirds vote (the same number required to remove a president).

Put aside his calling impeachment proceedings a “coup.” The Constitution clearly provides for impeachment. Article I, Section 2 gives the House “the sole Power of Impeachment.” Article I, Section 3 gives the Senate “the sole Power to try all Impeachments,” specifying that when the president is tried the Chief Justice shall preside and that a two-thirds vote is required for removal. What’s more, Article II, Section 4, clearly states that the president shall be removed from office upon impeachment for and conviction of treason, bribery, or “other high Crimes and Misdemeanors.” Beyond that, the Constitution makes clear that punishment shall not extend beyond removal from office and disqualification to hold office in the future, while making equally clear that any officer removed can be tried for criminal wrongdoing.

Put aside Trump’s insistence that turning to the Twenty-Fifth Amendment—stripping from the president the powers and duties of his office, for reasons that could include mental health—would be “unconstitutional” despite the fact that the process is clearly provided for in the Constitution.

Put aside Trump’s praise of Article XII, which does not exist.

Perhaps you think a president who swore a unique oath to uphold the Constitution—as commanded by Article II, Section 1—might at least have read the Constitution he swore to “preserve, protect and defend.” Maybe careful reading is too much to expect.

So let’s talk basics. Like what do the different branches of government do? How do they check one another?

Trump doesn’t understand that Congress is a co-equal branch that makes the laws and controls the purse. He has ignored subpoenas from the House of Representatives and directed some of his associates outside the executive branch, like Corey Lewandowksi, to decline to answer questions before Congress. Just this week, in a letter from the White House counsel on the unfolding Ukraine scandal, the president flatly rejected any notion of congressional oversight. No administration officials will come before Congress to answer questions and no documents will be provided. Preposterously, the letter deemed impeachment proceedings—clearly vested in Congress by the Constitution—unconstitutional! His intransigence should force Congress to come to terms with its own dereliction of constitutional duty; it must insist on its constitutional prerogatives. If it does, the growing conflict between Congress and the president could be a step toward restoring the constitutional separation of powers and checks and balances rather than a constitutional crisis.

As James Madison argued in the most famous of the Federalist Papers, American political institutions are arranged so the “different powers of government” are separated into different branches, giving each branch “a will of its own” and empowering each branch so that it “may be a check on the other.” Madison pithily summed up the notion of checks and balances: “Ambition must be made to counteract ambition.”

Yet this is just where Trump is at a complete loss. When it comes to executive power, Trump insists “I have an Article II, where I have the right to do whatever I want as President.” If the man weren’t president, this would be laughable. It’s deeply amusing that he said it in a speech purportedly intended to educate conservative college students about the Constitution. Article II of course says no such thing. But President Trump has repeatedly spoken and acted on this basis, believing that the powers of the presidency aren’t just vast (they are) but unlimited (they are not). Recall his repeated declarations that “I have the absolute right to declare a national emergency” and “I have absolute right to do what I want to do with the Justice Department.” Consider, too, that the latest arguments from his White House counsel and Department of Justice place him beyond the reach of either Congress or the courts.

Trump has also taken to filling high-level executive-branch jobs with “acting” officers so as to skirt the Senate’s check on presidential administration in confirming governmental officers. And he has neglected Article II, Section 3’s insistence that “he shall take Care that the Laws be faithfully executed”—including in the current Ukraine fiasco. The whistleblower in that case is protected by law; it’s the president’s job to enforce the law. Instead, Trump has been leading the charge to expose the whistleblower in violation of the law.

Most strikingly, Trump seems to have no idea how the Supreme Court works. Sure, he understands that he gets to appoint judges. But he seems to view these judges as “his,” with complete disregard for judicial independence. (That must grate on jurists like Neil Gorsuch and Brett Kavanaugh—as if they’re just two more Trump lackeys littering the D.C. landscape.) The worst is his repeated insistence that the Supreme Court ought to take action on his behalf. If Congress tries to impeach him, he has said, the Supreme Court must intervene. But the Court has no role in the impeachment process, beyond the Chief Justice presiding over the Senate trial. Trump thinks the Court is a roving inquisitor. Accusing James Comey of lying, Trump tweeted: “But where is the Supreme Court. Where is Justice Roberts?” He said he hoped “Justice Roberts will take action.” But the Supreme Court does not initiate action. And Chief Justice Roberts is not Trump’s personal attorney.

“But Gorsuch!” That’s the worst of it. The president can trample the Constitution but at least there will be conservative justices! This is a devil’s bargain: It risks politicizing the judiciary (admittedly in the name of restoring judges to their proper role), while allowing gross constitutional malfeasance from the chief executive. Under Article VI, all public officials swear an oath to uphold the Constitution because the promise of constitutional government depends on all the branches. To secure a few seats on the Supreme Court while the other branches neglect the Constitution is a profound distortion of constitutional government that’s likely to have lasting consequences.

The Trump presidency is a great reminder that constitutional forms, as important as they are, do not suffice to preserve our constitutional order. They must be backed up by habits of mind that Donald Trump does not possess and is constantly undermining among his followers—such habits of mind as prudence and respect for institutions. As James Madison put it at the Virginia ratifying convention: “Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure.”

Are we there? Is there no virtue among us? We’re going to find out.

George Thomas

George Thomas is the Wohlford Professor of American Political Institutions at Claremont McKenna College and author of The Founders and the Idea of a National University: Constituting the American Mind and coauthor of the two-volume American Constitutional Law: Essays, Cases, and Comparative Notes.