In the summer of 1787, George Mason told the authors of the Constitution that “no point is of more importance than that the right of impeachment should be continued.”
To the framers who had only recently thrown off the rule of King George III, Mason explained that this was the answer to the question that challenged a new nation that did not choose to be a monarchy: “Shall any man be above Justice? Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?”
In those tumultuous days, Mason feared the “easy step to hereditary Monarchy,” and answered his own questions with advocacy for a rigorous system of checks and balances on the presidency.
Donald Trump has a different answer to the questions that Mason posed. As he and his legal team scramble to avert questioning of the president by special counsel Robert Mueller—or, at the very least, to limit the scope of that questioning—Trump asserted Monday that the Mueller investigation is unconstitutional and insisted that Mueller’s appointment is “totally UNCONSTITUTIONAL!” He cooperates with it not out of respect for the rule of law or the system of checks and balances but because he chooses to do so as someone who claims to “have done nothing wrong.” At roughly the same time, Trump declared that he has an “absolute right” to pardon himself if the heat gets too heavy.
That sounds mighty monarchical.
Where is Trump getting these un-American ideas? From the lawyers he has hired to tell him what he wants to hear about an inquiry that, not unlike those of previous special counsels, appears to be engaged in a meticulous examination of specific wrongdoing and broader questions of obstruction of justice.
Donald Trump has apparently been informed by his lawyers, and his own ego, that he is something of a monarch.
In a 20-page memo that was dispatched by those lawyers to Mueller’s office earlier this year, those lawyers asserted a view of the presidency that places Trump so far above the law, as The New York Times reported after obtaining the document, that “it is impossible for him to obstruct justice by shutting down a case or firing a subordinate, no matter his motivation.”
Specifically, Trump’s lawyers wrote: “Every action that the president took was taken with full constitutional authority pursuant to Article II of the United States Constitution. As such, these actions cannot constitute obstruction, whether viewed separately or even as a totality.”
In a document littered with references to “ensuring that the office remains sacred” and clearly irrelevant statutes, along with suggestions that “having [Trump] testify demeans the office of the president before the world,” the president’s lawyers rejected basic premises of the system of checks and balances. At the same time,they peddled a fantasy that suggests that areas of law that remain unsettled have, in fact, been decided in favor of an imperial presidency. Notably, they asserted, the president could, “if he wished, terminate the inquiry, or even exercise his power to pardon.”
Trump clearly relishes what the Times refers to as “a brash assertion of presidential power.” But his lawyers would do well to remind him that the Constitution’s outline of the pardon power includes a qualifier: “except in Cases of Impeachment.”
If Trump were to follow the counsel of the petty royalists with whom he has surrounded himself, he could still face the accountability moment that the framers anticipated.
And they did anticipate it.
Mason raised concerns about abuses of the president’s power to grant pardons, arguing that an errant executive might seek “to stop inquiry and prevent detection” or “pardon crimes which were advised against himself.” James Madison, the essential author of the Constitution, counseled that “If the president be connected in any suspicious manner with any persons, and there be grounds to believe he will shelter himself; the house of representatives can impeach him: They can remove him if found guilty: They can suspend him when suspected, and the power will devolve on the vice-president: Should he be suspected also, he may likewise be suspended till he be impeached and removed…”
“This,” explained Madison, “is a great security.”
The impeachment power does provide great security—if it is understood, respected, and asserted when presidents imagine that they are monarchs.