President Donald Trump is playing chicken with the Constitution.
Hardly a week goes by when President Trump and his surrogates are not discussing how the president has the personal authority to manage criminal investigations at the Department of Justice, how the president is free to ignore subpoenas or how the president has the ability to pardon himself, no matter what federal crime he may have committed. Rudy Giuliani, an attorney for the president, is not raising these issues because they are fun hypotheticals that may appear on your next constitutional law exam. On the contrary, there is a message in this madness, and we need to understand what that message is and what it means for America and our system of government.
The message itself is clear: Don’t push the Mueller investigation too far, because if it gets too uncomfortable or too close, President Trump is perfectly willing to provoke a constitutional crisis if he thinks it might help save his own skin. Cutting through all the half-denials and mock outrage, the message boils down to, “That’s a nice Constitution you’ve got there. It would be a shame if anything were to happen to it …”
But a constitutional crisis isn’t all bad. They say that what doesn’t kill you makes you stronger, and that’s certainly true with respect to America’s legal and political institutions. Probably our first constitutional crisis, Marbury v. Madison, established the Constitution as a true check on the powers of the government and placed it beyond the reach of the petty political needs of elected politicians. It is because of Marbury v. Madison that the Constitution means something besides what the government-of-the-day says it means.
Our constitutional system of government was strengthened once again in the Watergate tapes case. In an effort to quash the special prosecutor’s subpoena seeking to force President Richard Nixon to turn over the Watergate tapes, Nixon’s legal team argued that the president “is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.”
But in United States v. Nixon, the Supreme Court held that the president is not a king and that he, like any other citizen, is subject to the jurisdiction of the courts. United States v. Nixon stood our country in good stead when President Bill Clinton attempted to evade his own subpoena. But, this time, there was no constitutional crisis. The judicial precedents established in the Nixon cases turned what could have been high drama into low farce.
And now, in his turn, President Trump is seeking to place himself above the courts and outside the rule of law. Worse, there is the sense that our institutions are too fragile to withstand the shock of a confrontation between the presidency and the judiciary. But if that is so, our constitutional system of government is already lost.
Our institutions are not yet so weak. But they are not getting any stronger, and they will not become stronger through a failure to exercise them. If we must have this confrontation, the sooner the better. Giving President Trump special treatment out of fear he will provoke a constitutional crisis by ignoring a grand jury subpoena merely weakens those institutions for the next confrontation. And such a confrontation is certain to come. You cannot deter bad behavior by rewarding it.
The president is merely a citizen entrusted with high office. While the courts must pay due deference to the president’s constitutional responsibilities, he is no more entitled to violate the laws or ignore a court order than any other citizen. Like any other citizen, he has a duty to provide evidence in response to a grand jury subpoena. Giving evidence before a grand jury is occasionally stressful, sometimes embarrassing, but essentially simple: tell the truth. If this is something President Trump is unable or unwilling to do, the sooner we find out, the better.
So if we are going to have a constitutional crisis to establish, once and for all, that the president of the United States is subject to the courts, let’s have it now, with this president. I am not so much interested in punishing past transgressions as I am in preventing new ones. If one thing comes out of President Trump’s confrontation with Special Counsel Robert Mueller, I hope it will be a firmly-established principle that no one, including the president — especially the president — is above the law.
Chris Truax is an appellate lawyer in California and sits on the legal advisory board for Republicans for the Rule of Law.
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