Donald the King

King Henry IV of England

Uneasy lies the head that wears a crown. — William Shakespeare, Henry IV, Part II, Act III, Scene 1. 

And, you thought George III was the last monarch on these shores. Not so, given the stunning assertions of executive power this weekend by Team Trump. King Donald is assuming the throne (gold, naturally) and is being outfitted for a gold crown. All that remains is a decree commanding that supplicants before the king kiss his ring and walk backwards while leaving the monarch’s presence.

The claims of absolute power began Saturday with the revelation by The New York Times of a 20-page letter sent in January by President Donald Trump’s lawyers to special counsel Robert Mueller. Trump’s lawyers claim the president, “by virtue of his position as the chief law enforcement officer,” cannot obstruct justice “because that would amount to him obstructing himself.” But, the lawyers write, “He could, if he wished, terminate the inquiry [into collusion with Russia], or even exercise his power to pardon if he so desired.” The lawyers also assert the president cannot be compelled to testify. There words — the notion that the law is whatever the president says it is — should chill any democratic-thinking American. 

Rudy Giuliani, Donald Trump’s lawyer

On the Sunday talk shows, Rudy Giuliani, a current Trump attorney, continued the full-court press on this expansive view of executive power, arguing that the president probably has the constitutional authority to pardon himself. “He probably does,” the brash Giuliani said. “He has no intention of pardoning himself, but he probably — not to say he can’t.” Giuliani also said a pardon was “unthinkable” because it would probably lead to impeachment. “It’s not going to happen. It’a hypothetical point,” he added. 

The president has been thinking about pardons. Last week, he pardoned conservative provocateur Dinesh D’Souza and floated the possibility of pardoning TV personality Martha Stewart and commuting the sentence of Rod Blagojevich, the former governor of Illinois. All three had been convicted of crimes similar to those brought against Trump aides in the Russia investigation. And, the president has given some thought to pardoning himself. Monday morning, he tweeted,  “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?”

President Trump admitting to Lester Holt he fired James Comey because of “this Russia thing.”

Perhaps, but all the protesting of innocence and claiming of executive power suggest that Donald Trump — and those around him — are “uneasy,” as Shakespeare put it. No one knows how much the special counsel knows, but we do know the president obstructed justice. Trump told NBC anchor Lester Holt (and everyone in America watching) he fired former FBI director James Comey because of “this Russia thing.” Now, we learn in the January letter from Trump lawyers to Mueller, “The President dictated a short but accurate response” on behalf of his son, Donald Trump, Jr., regarding stories that the younger Trump and others attended a meeting with Russians in Trump Tower to get “dirt” on Hillary Clinton. As Times reporter Maggie Haberman puts it in annotated notes to the letter, “This is the first time that representatives of Mr. Trump concede” his role in drafting the letter. The clear facts of presidential obstruction necessitated the lawyers’ insistence that the president cannot “constitutionally nor legally” obstruct justice.

Richard Nixon talking to David Frost

The broad claim of presidential powers is reminiscent of Richard Nixon’s assertion, told to David Frost three years after the disgraced president left office, “When the president does it, that means it is not illegal.” Most legal analysts believe a president has power to issue pardons and shut down an investigation, but if his motives in taking those actions are corrupt, then he has committed obstruction. As Neal Katyal, a former acting solicitor general, said, “The idea that a president can’t obstruct justice died with King George III, with a brief attempt at revival by Richard Nixon.” 

The letter to Mueller can be read, at least in part, as an attempt to lay down markers in the special counsel’s investigation. “This memo is a polite way of taking 20 pages to say, ‘He’s not coming in without a subpoena, and even then, you’re in for a protracted fight,’” said Jacob Frankel, a lawyer who worked in the independent counsel’s office in the late 1990s. Raising the possibility of a self-pardon is a warning, in the memo and by Giuliani and the president himself, that the president is prepared to escalate the dispute with Mueller by pardoning anyone under investigation. 

House Majority Leader Kevin McCarthy

Trump and his advisers are playing a duplicitous game, insisting the president has the right to pardon himself while asserting he has no intention to do so because it might result in impeachment. “Listen, there’s no way that’ll happen,” said former New Jersey Republican Governor Chris Christie. “If the president were to pardon himself, he’ll get impeached.” Maybe, but House Majority Leader Kevin McCarthy, the front-runner to become the next House speaker, seemed to disagree, claiming the only issue in the Mueller probe should be whether there was collusion between the Trump campaign and Russia during the 2016 election. “What I was concerned most about, like most Americans, was there any collusion?” the California Republican said, adding, “If there is no collusion, it’s time to wind this down.” Certainly, Republicans, who control the House now, have no intention of beginning impeachment proceedings against the president. Democrats may take over the House in the November elections, but even if they succeeded in impeaching Trump, it is hard to imagine enough Republican senators voting to convict to achieve the necessary two-thirds majority. Trump may not be the brightest president, but he probably can do the math (and, if he cannot, certainly, one of those lawyers could do it for him). So, do not rule out a presidential pardon of the president.

King George III

But, most Americans would view such an act as a terrible admission of guilt. “It smacks of royal authority,” Jens David Ohlin, vice dean of Cornell Law School, said. “If a president can pardon himself, he’s basically saying, ‘Well, I’m above the law,’ and that sounds like the type of royal authority we rejected when we created America.” King Donald may not care about America’s history, but he has plenty of reasons to be nervous: Uneasy lies the head that wears a crown.

Posted June 5, 2018

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