A bipartisan counterrevolution against the United States Constitution on the installment plan stretching back decades has destroyed its crown jewel: separation of powers. A structural restoration is needed to arrest tyrannical, outlaw, presidents.
The counterrevolution reached its peak under former President Donald Trump. Among other things, Mr. Trump, on July 23, 2019, echoed the British monarchical, counter-constitutional doctrine that the king can do no wrong: “Then I have Article 2, where I have the right to do anything I want as president.” As promised, Mr. Trump reduced the law into a lawless jumble of political calculations with self-entrenching objectives.
Mr. Trump’s former national security advisor, John Bolton, in his memoir described a pattern of presidential behavior, including manipulation of criminal law enforcement to protect favored dictators like Turkey’s President Recep Erdogan, which “looked like obstruction of justice as a way of life. . . .” The Mueller report provided abundant evidence to fortify Mr. Bolton’s observation.
Mr. Trump notoriously provoked a violent insurrection against Congress with a pep rally on January 6, 2021, to prevent Vice President Mike Pence from counting state-certified electoral votes verified in dozens of lawsuits and to frustrate a peaceful transfer of presidential power. Mr. Trump demanded Georgia’s Republican Secretary of State Brad Raffensperger and his own Department of Justice invent voting fraud to invalidate the 2020 presidential election. That he still has neither been indicted nor subpoenaed for these criminal offenses is portentous.
Mr. Trump ignored with impunity hundreds of congressional subpoenas and official requests for information. In contrast, an article of impeachment was voted against President Richard Nixon by the House Judiciary Committee before his resignation for disobeying four subpoenas for documents.
As President, Trump openly defied the Anti-Deficiency Act, a criminal statute, and the Appropriations Clause by diverting billions of dollars in military construction funds and Federal Emergency Management appropriations to build the wall with Mexico and to pay unemployment benefits. He turned the White House into a Hatch Act crime scene by holding campaign events at the White House and commanding or coercing federal employees to assist his re-election, including gratuitously stamping his name on CARES checks.
A recent Office of Special Counsel report confirmed the White House directive to Secretary of State Mike Pompeo to deliver an online speech to the Republican National Convention from Jerusalem promoting Mr. Trump’s re-election.
Mr. Trump, like a long line of his predecessors, continued to fight unconstitutional wars never declared by Congress under the Declare War Clause. He acted as prosecutor, judge, jury, and executioner to kill any person on the planet the president speculated to be an imminent national security risk based on secret, uncorroborated information. He invoked state secrets or executive privilege to frustrate judicial redress for victims of constitutional wrongdoing, including torture, kidnapping, or assassinations.
King George III’s assertion of limitless power over the American colonists gave birth to the American Revolution and Declaration of Independence. The latter proclaimed self-evident truths that governments are legitimate to the extent they reflect the consent of the governed and safeguard their unalienable rights to life, liberty, and the pursuit of happiness.
The Declaration’s 27 grievances justifying independence targeted the King alone. Thomas Paine, the voice of the American Revolution, wrote in Common Sense: “[T]hat 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.”
In contrast to the American colonists more than 235 years ago, political officials and citizens of all persuasions have displayed complacency with Mr. Trump’s vandalism of the Constitution and celebration of executive supremacy. Notwithstanding the voluminous credible evidence in the public domain, the Biden administration has refrained from prosecuting Mr. Trump for the multiple criminal violations that are in plain view.
Political cravenness in addressing Mr. Trump’s serial violations reached a new plateau in the refusal of the House Select Committee on the January 6 attack to subpoena him or former Vice President Pence to testify. They are indispensable witnesses to Mr. Trump’s aggressive campaign to overthrow the Constitution and assume the powers of a dictator. Congress possesses inherent contempt power to immediately sanction Trump or Pence compliance with fines or imprisonment.
As some of his predecessors, we surmise that President Biden supports shielding Mr. Trump from legal accountability to avoid a precedent leaving him exposed as an ex-President when control of the White House and Congress may shift to the Republican Party. Republicans have promised retaliation already. But President Biden’s failure to categorically denounce Mr. Trump’s alarming constitutional and statutory violations endanger the nation’s future under the rule of law.
Citizens can reclaim the Constitution by defeating serial violators at the polls and encouraging other voters to do likewise. Otherwise, to paraphrase Walt Kelly’s Pogo, “We have met the enemy of the Constitution, and he is us.”
Bruce Fein was associate deputy attorney general under President Reagan. Lou Fisher is a Visiting Scholar at the William and Mary Law School. Ralph Nader is a consumer advocate.