Taking the imperial presidency much too far

  The debate over treating the American president as a king, or as historian Arthur Schlesinger called it, ‘the imperial presidency,’ has been one that has concerned political historians from the beginning of the republic but reached new heights during the presidency of Richard Nixon in the 1970s, when Nixon deployed more than 1,500 Army intelligence personnel to illegally spy on left-wing movements that were at odds with his administration’s policy. Schlesinger, in his book Imperial Presidency, wrote that Nixon’s actions represented the culmination of a gradual shift towards greater executive power. After four years of the Trump Administration, one has to wonder whether Schlesinger might modify his views and agree that as egregious as Nixon’s actions were, they pale in comparison.

 

As bad as the 2016 -2020 period was, however, statements made by Trump’s lawyer in a January 9, 2024, appeals court hearing in the election-interference case brought against Trump by special counsel Jack Smith, have elevated the concept of the imperial president to unimaginable heights. Trump and his lawyers have repeatedly argued that as ex-president he has ‘absolute immunity from criminal prosecution for his acts while in office. Judge Florence Pan, one of the three judges on the Washington, DC, appeals court asked the lawyer, D. John Sauer, a series of questions to test that argument which was, in effect, even if he committed a crime while in office, if the Senate didn’t convince him in an impeachment hearing he couldn’t be prosecuted once he left office.

 

Pan asked if this meant that he couldn’t be held accountable for selling pardons or military secrets if Congress didn’t impeach and convict him, and the lawyer replied, “Yup, as long as it’s an official act.”

 

“Could a president order SEAL Team Six to assassinate a political rival?” the judge asked. “That’s an official act; an order to SEAL Team Six.”

 

Sauer tried to say that he would have to be impeached and convicted before there could be a criminal prosecution, but the judge cut him off and asked what the case would be if he wasn’t impeached. Sauer finally said that he would have to be impeached and convicted before there could be a criminal prosecution.

 

I was listening to the hearing live and when that exchange occurred, I was gobsmacked. He was saying, in effect, that a president could do anything while in office and if a feckless Senate declined to convict (and the chances of a Senate of the president’s party convicting him is nearly nil), he could never be prosecuted. Now, I’m no lawyer, nor am I an expert on the Constitution, but I can read English, and my reading of Article 1, Section 3, Clauses 6 and 7, say nothing about impeachment and conviction are required before a president can be subject to criminal prosecution. Clause 7 seems to be the one the Trump legal team is resting this view on, and it states:

 

“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

 

I see nothing in this clause that says the person is only liable to criminal prosecution after impeachment and conviction. What it says is that impeachment and conviction can only remove the person from office and disqualify that person from future office of honor, trust or profit under the United States. Some legal experts tend to agree with my view, that criminal conduct under cover of an official position (which can result in indictment for any other government official) also applies to the president. For example, if, when a person was in government as a senior official, and passed classified documents to an unauthorized person or organization but was not punished for it while still in office, that person could still be prosecuted after leaving office. Another novel argument that Trump and his lawyers have offered is that the president is not an ‘officer’ of the government, the president is the government. Now, that too is taking the concept of the imperial president a bridge too far.

 

One hopes that the appeals court will treat this specious argument as it deserves to be treated and reject it outright, and when that decision is appealed to the Supreme Court, that body, despite its majority leaning so far right their left ear is underground, will do the same. To accept this line of reasoning is to sound the death knell of American democracy and make a mockery of the adage that ‘no one is above the law.’

 

At the same time, any attorney who presents such an argument to the honorable court should, at a minimum, be verbally reprimanded for it.

 

We can now but wait the decision of the honorable court.