President Must Follow Rule of Law

President Must Follow Rule of Law

By: Daniel Sleasman And Scott Harshbarger
Dec. 30, 2019

The dominant issue of the moment is whether President Donald Trump should be removed for, among other things, having abused the power of his office. That issue will be determined by the Senate majority, which seems ready to enter into a joint defense with the president and dismiss impeachment without much ado.

In the aftermath, our republic will remain confronted with a far more profound challenge. That is, whether it is even possible for a president to abuse the power of the office. The claim is made in rhetoric, actions and in court proceedings (demanding “absolute” immunity) that, as with royals, there are no limits on a president’s executive power and therefore, our laws do not apply to the presidency.

President Richard Nixon once famously said, “If the president does it, that means that it is not illegal.” Centuries before that, a European monarch, King Louis XIV, proclaimed “L’etat c’est moi.” (“The state is me.”) Echoing these abhorrent proclamations, the current president asserts that Article II of the Constitution bestows an “absolute right” to “do whatever I want.” He likes to refer to military leaders as “my generals” and the head of our Justice Department as “my attorney general.” News media are decreed “the enemy of the people,” “fake” and “traitors” if they are critical of him or dare to act as truth tellers.

It is bad enough that the president acts in such an imperious manner, but making matters worse, Attorney General William Barr has provided a color of legitimacy, promoting an extreme interpretation of the “unitary executive” theory. Barr’s radical (not conservative) interpretation also has been well received by the Federalist Society, a small but influential group of self-described “conservative” lawyers that, coincidentally and ominously, has been given authority to pre-screen federal judges for this president. In essence, Barr’s lofty sounding advocacy stands for an imperial-royal-presidency. This interpretation holds that presidential power is not limited to authority over executive branch agencies, but is elevated to superiority over the other two branches of our government, without accountability to anyone. This is not consistent with our Constitution.

We are taught from an early age that our republic was formed in utter rejection of any monarchial presidency, benign or otherwise. The framers carefully structured three “separate but equal” branches of government to ensure that we would not “degenerate” into an elected monarchy with unchecked authority. Debates and ratification of the Constitution settled that issue more than two centuries ago, granting limited authority to each of the branches. It follows that the rule of law applies to one and all including our president.

All newly admitted attorneys take an oath, promising “to support the Constitution of the United States.” Thankfully, an increasing number of members of the legal profession are doing so, expressing urgently needed support of the Constitution and for the rule of law. More voices still need to be heard. For example, The nonpartisan Lawyers Defending American Democracy penned an “Open Letter to the President and to Congress,” calling on the president to respect and honor fundamental principles and norms of American democracy, and for lawyers, bar associations, law schools, and law firms “to speak out, on a nonpartisan basis, against these attacks on the core of our democratic constitutional form of government.” It has been signed more than 800 attorneys, a list that continues to grow. A conservative lawyers group, “Checks and Balances” recently published a similar statement as have a large number of legal scholars.

We hope they will be heard.