Don’t get me wrong - I’d give almost anything to have a boring president (of either party) who colors inside the constitutional lines. Given that we do not, however, we might think of the Trump presidency as a four-year course in constitutional and criminal law. (If we are diligent, perhaps we can finish in less than four.)
Unfortunately, it seems to be a years-long class jammed into a few weeks. Just in the past month, we’ve had raging public debates about the pardon power, the emoluments clause, immigration law, witness tampering and the executive branch’s refusal to defend a statute, not to mention Supreme Court decisions that turned on standing (albeit as a mechanism to duck ruling on gerrymandering, which implicates several civil liberties), search and seizure, and the states’ taxing power with respect to online retailers.
Some of this is the normal ebb and flow of legal issues, but this president presents unique issues given his contempt for democratic norms and the independence of the courts, along with his predilection to dehumanize immigrants. Forget “pushing the envelope” - President Donald Trump seems to be feeding the Constitution into a shredder. (We hope it is a cheap shredder like Michael Cohen, allowing for us to tape it back together after Trump leaves office.)
I offer three suggestions that may help keep up with the dizzying pace of the legal claims and issues flying by us.
First, when Trump says something such as “I can pardon myself,” or “I haven’t decided if I will talk to the special counsel” (ultimately a subpoena will settle the matter), do not consider it a pronouncement on the law or even a statement of intent. He says whatever he thinks in the moment serves his interests, shows he is top dog and/or pumps up his base. Rather than get irate, the rest of us have a job: show why his utterance is beyond the realm of reasonable argument.
Take Trump’s self-pardon doctrine. Constitutional scholar Laurence Tribe tells me a self-pardon is an “a constitutional impossibility.” Former chief White House ethics lawyer Norman Eisen advises that a self-pardon “is inimical to the constitution and rule of law. It would be invalid, and would be set aside by the courts should a prosecutor or another party with standing challenge it.”
As Tribe, Eisen and Richard Painter previously wrote:
“(In a pardon) the president is acting as a kind of super-judge and making a decision about someone else’s conduct, the justice of someone else’s sentence or whether it is in the national interest to prosecute someone else. He is not making a decision about himself.
“Self-pardon under this rubric is impossible. The foundational case in the Anglo-American legal tradition is Thomas Bonham v. College of Physicians, commonly known as Dr. Bonham’s Case. In 1610, the Court of Common Pleas determined that the College of Physicians could not act as a court and a litigant in the same case. The college’s royal charter had given it the authority to punish individuals who practiced without a license. However, the court held that it was impermissible for the college to receive a fine that it had the power to inflict: ‘One cannot be Judge and attorney for any of the parties.’”
Cross self-pardon off the list of things to worry about. We can ignore it whenever he brings it up again.
Second, we can take comfort from a political system in which the courts always get to decide (even if they decide not to decide, as in the gerrymandering cases). Justice Robert Jackson famously said of the Supreme Court, “We are not final because we are infallible, but we are infallible only because we are final.” Whether regarding the Muslim ban or the sanctuary-city cases, courts routinely have rejected the administration’s arguments that the decision at issue was unreviewable - and then ruled against the administration.
Trump may think immigrants, especially illegal immigrants, have no rights and that his executive power is unlimited, but the courts say otherwise; and ultimately the courts are there to vindicate those rights. (Preventing or curing harm is another matter, and for that political action is usually required.)
Consider that in the same week that the Trump administration was grabbing children away from their parents, shipping them thousands of miles away and making health-care decisions without parental consent, the Supreme Court, in an 8-to-1 decision, reminded us that rights apply to noncitizens and nonresidents. SCOTUSblog reported:
“Eight justices sided with Wescley Fonseca Pereira in his argument that a government-issued document notifying him of the government’s intention to initiate removal proceedings against him did not stop the clock on his continuous physical presence in the United States, leaving him eligible for potential relief from removal. At a time when immigrants are frequently dehumanized, it is worth noting that the majority opinion, signed by eight members of the court, not only expressly affirms Pereira’s contributions to his community, but also eschews entirely the use of the statutory term ‘alien’ in favor of ‘noncitizen,’ a term that the court defines in footnote.”
Moreover, there was a critically important limit imposed on the so-called Chevron doctrine that affords inordinate deference to executive-branch agencies and departments. (“Justice Anthony Kennedy’s concurrence,” SCOTUSblog reported, “stresses the need for courts to engage in their own, independent appraisals of statutory text before capitulating to an agency’s conclusion that a statute is ambiguous. The justices do not back away from the principle articulated in 1984 in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. that courts should defer to an agency’s legitimate interpretation of an ambiguous statute. But the justices in the majority are clear that Chevron deference does not come into play unless there is, in fact, statutory ambiguity.”) Yes, courts always get to decide.
Finally, elections matter, and Congress can matter again if Republicans lose their majority in one or both houses. Control of committees and the subpoena power gives the majority the ability to grill senior officials, reveal embarrassing material, block nominations and bring in expert witnesses to blast the administration. Subpoenas for documents exposing Trump’s and Jared Kushner’s foreign holdings, an impeachment process for Environmental Protection Agency Administrator Scott Pruitt, a law to require presidents to disclose their tax records, legislation to recapture Congress’s trade authority, and restraints on Trump’s ability to launch a first strike without congressional approval are all in the realm of possibility.
A Democratic majority in the House would offer the promise of passing legislation to fix Obamacare (after Trump made it worse), protect the “dreamers” and finally pass an infrastructure plan. In the Senate, neither side is going to have a 60-to-40 majority to defeat a filibuster, but one can imagine a thin Democratic majority gathering up a batch of independent-minded Republicans (e.g., Tennessee’s Lamar Alexander, Maine’s Susan Collins, Alaska’s Lisa Murkowski, West Virginia’s Shelley Moore Capito, Colorado’s Cory Gardner, perhaps Utah’s Mitt Romney) to clear the threshold for cloture or to use reconciliation to force Trump’s hand on most budget items.
In sum, we know Trump knows nothing about our Constitution; what matters is that the courts know plenty and are eyeing his increasingly authoritarian, lawless rhetoric. A properly functioning Congress can restore yet another check on Trump. And let’s not forget: As disruptive as Trump has been, the Russia investigation and obstruction-of-justice inquiry continue. Special counsel Robert Mueller III tops Trump in credibility with voters, and a meticulous case revealing substantial evidence of wrongdoing (if based only on facts already known) is quite possible.
Add in Trump’s sheer incompetence, and one can see the decline and eventual elimination of the rogue presidency. It just takes time.