John Whitehead's Commentary
There Is No ‘Get Out of Jail Free’ Card for the President
“When the President does it, that means that it is not illegal.“—Richard Nixon
Someone needs to alert Donald Trump: there is no “Get Out of Jail Free” card just for being president.
According to Trump’s Twitter feed, he believes that he has an absolute right to pardon himself of any crimes for which he might be charged while serving in office.
He’s not alone in this imperial belief.
Two of Trump’s lawyers have attempted to float the idea that “the president’s powers are so broad as to make it impossible for him to have obstructed justice.”
Rudy Giuliani, another of Trump’s enablers, insists that Trump could even get away with shooting the FBI director in the Oval Office and not be prosecuted for murder. “In no case can he be subpoenaed or indicted,” Giuliani argued, claiming a president’s constitutional powers are that broad.
It’s a losing argument.
Back in 1974, four days before Richard Nixon resigned, the Department of Justice concluded, “Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.”
To suggest otherwise, to empower the President to chart his own course and establish his own rules, not bound by the legislative or judicial branches of the government, is to effectively place him “above the law.”
In operating above the law, the president thus becomes a law unto himself—a dictator, an imperial overlord, a king.
Yet the United States government—a constitutional republic—is predicated on the notion that the law is supreme, and that no person, no matter how high-ranking, is able to flout it.
In other words, in America, the law is king.
That is the ideal that Thomas Paine put forth in his revolutionary treatise Common Sense. As Paine observed, “But where, say some, is the king of America? … The world may know, that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”
When we refer to the “rule of law,” that’s constitutional shorthand for the idea that everyone is treated the same under the law, everyone is held equally accountable to abiding by the law, and no one is given a free pass based on their politics, their connections, their wealth, their status or any other bright line test used to confer special treatment on the elite.
When the government and its agents no longer respect the rule of law—the Constitution—or believe that it applies to them, then the very contract on which this relationship is based becomes invalid.
Isn’t that what the American Revolution was all about?
Long before the DOJ issued its 1974 memorandum, which soundly refutes Trump’s claims to legal immunity, America’s founders issued their own proclamation—the Declaration of Independence—denouncing the tyrannical dictates of an imperial ruler.
Unfortunately, we’ve been backsliding ever since.
Although the Constitution requires a separation of powers between the executive, legislative and judicial branches of government in order to ensure accountability so that no one government agency becomes all-powerful, the office of the president of the United States has, for all intents and purposes, become a unilateral power unto itself.
Each successive president over the past 30 years has, through the negligence of Congress and the courts, expanded the reach and power of the presidency by adding to his office’s list of extraordinary orders, directives and special privileges.
All of the imperial powers amassed by Barack Obama and George W. Bush—to kill American citizens without due process, to detain suspects indefinitely, to strip Americans of their citizenship rights, to carry out mass surveillance on Americans without probable cause, to suspend laws during wartime, to disregard laws with which he might disagree, to conduct secret wars and convene secret courts, to sanction torture, to sidestep the legislatures and courts with executive orders and signing statements, to direct the military to operate beyond the reach of the law, to operate a shadow government, and to act as a dictator and a tyrant, above the law and beyond any real accountability—were inherited by Donald Trump.
These presidential powers—acquired through the use of executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements and which can be activated by any sitting president—enable past, president and future presidents to act as a dictator by operating above the law and beyond the reach of the Constitution.
This is what you might call a stealthy, creeping, silent, slow-motion coup d’état.
So it’s not all Trump’s fault if he believes that he is untouchable and all-powerful: this abuse of presidential powers has been going on for so long that it has become the norm, the Constitution be damned.
It’s not just the occupant of the Oval Office that needs to be held accountable to the rule of law, either.
There are hundreds—make that thousands—of government bureaucrats who are getting away with murder (in many cases, literally) simply because the legislatures, courts and the citizenry can’t be bothered to make them play by the rules of the Constitution.
Unless something changes in the way we deal with these ongoing, egregious abuses of power, the predators of the police state will continue to wreak havoc on our freedoms, our communities, and our lives.
It’s the nature of the beast: power corrupts.
Worse, as 19th-century historian Lord Acton concluded, absolute power corrupts absolutely.
It doesn’t matter whether you’re talking about a politician, an entertainment mogul, a corporate CEO or a police officer: give any one person (or government agency) too much power and allow him or her or it to believe that they are entitled, untouchable and will not be held accountable for their actions, and those powers will eventually be abused.
We’re seeing this dynamic play out every day in communities across America.
A cop shoots an unarmed citizen for no credible reason and gets away with it. A president employs executive orders to sidestep the Constitution and gets away with it. A government agency spies on its citizens’ communications and gets away with it. An entertainment mogul sexually harasses actors and actresses and gets away with it. The U.S. military bombs civilian targets and gets away with it.
Abuse of power—and the ambition-fueled hypocrisy and deliberate disregard for misconduct that make those abuses possible—works the same whether you’re talking about sexual harassment, government corruption, or the rule of law.
It’s the arrogance underlying the action that speaks volume.
Case in point: Bill Clinton still doesn’t think he did anything wrong by sexually harassing government employees.
Twenty years ago, I was a lawyer for Paula Jones, who sued then-President Clinton for dropping his pants and propositioning her for sex when he was governor of Arkansas. That lawsuit gave rise to revelations about Clinton’s affair with Monica Lewinsky, a 21-year-old intern at the White House, and his eventual impeachment for lying about it under oath.
As Dana Milbank writes for The Washington Post:
We didn’t know it at the time, of course. But in Bill Clinton were the seeds of Donald Trump. With 20 years of hindsight, it is clear. To see the former president — now promoting a mystery he co-wrote with novelist James Patterson — sit down with NBC’s Craig Melvin was to see how Clinton’s handling of the Monica Lewinsky affair was a precursor of the monstrosity we now have in the White House: dismissing unpleasant facts as “fake news,” self-righteously claiming victimhood, attacking the press and cloaking personal misbehavior in claims to be upholding the Constitution. The former president’s offenses were far less serious than President Trump’s. Trump’s many misdeeds — against women, law, facts, democracy and decency — are in a category of their own. But Clinton set us on the path, or at least accelerated us down the path, that led to today.
It doesn’t matter what starts us down this path, whether it’s a president insisting that he get a free pass for sexually harassing employees, or waging wars based on invented facts, or attempting to derail an investigation into official misconduct.
If we continue down this road, there can be no surprise about what awaits us at the end.
After all, it is a tale that has been told time and again throughout history about how easy it is for freedom to fall and tyranny to rise, and it often begins with one small, seemingly inconsequential willingness on the part of the people to compromise their principles and undermine the rule of law in exchange for a dubious assurance of safety, prosperity and a life without care.
For example, almost 85 years ago, the citizens of another democratic world power elected a leader who promised to protect them from all dangers. In return for this protection, and under the auspice of fighting terrorism, he was given absolute power.
This leader went to great lengths to make his rise to power appear both legal and necessary, masterfully manipulating much of the citizenry and their government leaders.
Unnerved by threats of domestic terrorism and foreign invaders, the people had little idea that the domestic turmoil of the times—such as street rioting and the fear of Communism taking over the country—was staged by the leader in an effort to create fear and later capitalize on it.
In the ensuing months, this charismatic leader ushered in a series of legislative measures that suspended civil liberties and habeas corpus rights and empowered him as a dictator.
On March 23, 1933, the nation’s legislative body passed the Enabling Act, formally referred to as the “Law to Remedy the Distress of the People and the Nation,” which appeared benign and allowed the leader to pass laws by decree in times of emergency.
What it succeeded in doing, however, was ensuring that the leader became a law unto himself.
The leader’s name was Adolf Hitler, and the rest, as they say, is history.
Yet history has a way of repeating itself.
Hitler’s rise to power should serve as a stark lesson to always be leery of granting any government leader sweeping powers.
Clearly, we are not heeding that lesson.
“How lucky it is for rulers,” Adolf Hitler once said, “that men cannot think.”
The horrors that followed in Nazi Germany might have been easier to explain if Hitler had been right. But the problem is not so much that people cannot think but that they do not think. Or if they do think, as in the case of the German people, that thinking becomes muddled and easily led.
Hitler’s meteoric rise to power, with the support of the German people, is a case in point.
On January 30, 1933, Hitler was appointed chancellor of Germany in full accordance with the country’s legal and constitutional principles. When President Paul von Hindenburg died the following year, Hitler assumed the office of president, as well as that of chancellor, but he preferred to use the title Der Füehrer (the leader) to describe himself. This new move was approved in a general election in which Hitler garnered 88 percent of the votes cast.
It cannot be said that the German people were ignorant of Hitler’s agenda or his Nazi ideology. Nazi literature, including statements of the Nazi plans for the future, had papered the country for a decade before Hitler came to power. In fact, Hitler’s book Mein Kampf, which was his blueprint for totalitarianism, sold more than 200,000 copies between 1925 and 1932.
Clearly, the problem was not that the German people did not think but that their thinking was poisoned by the enveloping climate of ideas that they came to accept as important.
At a certain point, the trivial became important, and obedience to the government in pursuit of security over freedom became predominant.
As historian Milton Mayer recounts in his seminal book on Hitler’s rise to power, They Thought They Were Free, “Most of us did not want to think about fundamental things and never had. There was no need to. Nazism gave us some dreadful, fundamental things to think about—we were decent people‑—and kept us so busy with continuous changes and ‘crises’ and so fascinated, yes, fascinated, by the machinations of the ‘national enemies’, without and within, that we had no time to think about these dreadful things that were growing, little by little, all around us.”
The German people were not oblivious to the horrors taking place around them. As historian Robert Gellately points out, “[A]nyone in Nazi Germany who wanted to find out about the Gestapo, the concentration camps, and the campaigns of discrimination and persecutions need only read the newspapers.”
The warning signs were definitely there, blinking incessantly like large neon signs.
“Still,” Gellately writes, “the vast majority voted in favor of Nazism, and in spite of what they could read in the press and hear by word of mouth about the secret police, the concentration camps, official anti-Semitism, and so on. . . . [T]here is no getting away from the fact that at that moment, ‘the vast majority of the German people backed him.’”
Half a century later, the wife of a prominent German historian, neither of whom were members of the Nazi party, opined: “[O]n the whole, everyone felt well. . . . And there were certainly eighty percent who lived productively and positively throughout the time. . . . We also had good years. We had wonderful years.”
In other words, as long as their creature comforts remained undiminished, as long as their bank accounts remained flush, as long as they weren’t being discriminated against, persecuted, starved, beaten, shot, stripped, jailed and turned into slave labor, life was good.
As I make clear in my book Battlefield America: The War on the American People, this is how tyranny rises and freedom falls.
Beware of those who prioritize their politics over your freedoms.
Beware of those who prioritize their bank accounts over your freedoms.
Beware of those who prioritize their religion over your freedoms.
Beware of those who advocate absolute obedience to those in power.
Beware of those who equate patriotism with submission to the government’s dictates.
Beware of those who shrug dismissively over official misconduct and urge you to turn a blind eye, as well.
Beware of those who wage war against the Constitution and the Bill of Rights. They are all that stand between us and despotism.
As revolutionary war hero Daniel Webster warned, “Hold on, my friends, to the Constitution and to the Republic for which it stands. Miracles do not cluster and what has happened once in 6,000 years, may not happen again. Hold on to the Constitution, for if the American Constitution should fail, there will be anarchy throughout the world.”
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at www.amazon.com. Whitehead can be contacted at email@example.com.