Law professors explain why the US presidency “is not a get out of jail free card”

There are limits to presidential power, like the commander-in-chief has to follow the law.
There are limits to presidential power, like the commander-in-chief has to follow the law.
Image: Reuters/David McNew
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Donald Trump has lawyers, of course—he’s got lots. But they aren’t necessarily  steeped in the intricacies of the law like the 21 luminaries of legal scholarship who joined together in a June 4 letter to explain the US Constitution to White House attorneys.

Addressing White House counsel Donald McGahn II and special counsel to the president Emmet Flood, the esteemed scholars—including constitutional law master Erwin Chermerinsky, dean of the University of California, Berkeley law school—express concern about Trump’s view of his powers. In a 2,000-word communiqué, they object to the US president’s “apparent belief that he is empowered by the Constitution to halt the Special Counsel’s investigation into alleged Russian interference in the 2016 election for any reason whatsoever, and his apparent view that he is not constrained by Congress’s duly enacted laws prohibiting the obstruction of justice.” Here are the highlights.

Why write?

The lawyers say they are responding to a letter from Trump lawyers to special counsel Robert Mueller:

As reported in the New York Times, attorneys for the President wrote a letter to Special Counsel Robert S. Mueller asserting that the Constitution empowers him to “to terminate the inquiry, or even exercise his power to pardon,” and that he cannot illegally obstruct any aspect of the investigation because of these powers. These views are incorrect.

Take care

The letter contends that “the best understanding” of Article II of the US Constitution bars self-interested actions by the president, especially if these acts undermine the law itself. The scholars explain:

While Article II empowers the President to execute the laws, it also constrains him in so doing. The “Take Care Clause” requires that the President “shall take Care that the Laws be faithfully executed.” Article II contains a mandatory Oath of Office whereby the President must swear to “faithfully execute the office of President.” Like the Take Care Clause, the Oath also conceives of the President’s role as a duty—to “preserve, protect, and defend the Constitution”—not a personal power

Not a king

The commander-in-chief isn’t a monarch. He’s a guy with a job, who must follow the law, the scholars say. While Trump may have “vast powers,” there are strict limits. They write:

The President’s executive powers therefore would not permit him to terminate the Russia investigation by firing the Special Counsel or his Department of Justice supervisors; to order the destruction of evidence developed in the Special Counsel’s investigation; to pardon himself or other subjects of the Special Counsel’s investigation; or to attempt to quash a subpoena, if the President takes any of these actions motivated predominantly by self-interest. Indeed, the Constitution, properly understood, would prohibit all of those actions under those conditions.

All the president’s lawyers

Trump’s lawyers can’t just be yes-men, agreeing with the president, according to the scholars. They have to correctly counsel their client on the law. The missive states:

Because the President does have vast powers as head of the executive branch, and because the difference between public-interested (constitutional) and corrupt (unauthorized and hence unconstitutional) presidential actions may often turn on the reasons for which actions are taken, the lawyers for a President have an especially important obligation of their own to the Constitution and people of the United States. The President’s lawyers must counsel their client so that he understands that acting for the right reasons is the key to lawfully exercising the great powers he wields.

Beyond the White House

The executive branch doesn’t have a monopoly on the law. The scholars lay out the interplay of the various branches of government and how the president’s powers fit within a grand scheme, writing:

The mistaken claim that Article II provides a complete defense to obstruction by the President rests in part on the incorrect premise that the Constitution grants him the exclusive right to exercise the executive powers. A President’s Article II powers must be read in conjunction with the restrictions the Constitution places on the federal government, Congress’s Article I powers, and the courts’ Article III powers, as well as laws duly enacted by Congress. The administration of justice involves all three branches of government…

When Congress legislates within its constitutional authority in a manner that restricts the President, the President is presumptively bound to comply with that law. After all, Congress is expressly given power to enact laws “necessary and proper” for implementing the powers of the President…

[I]t is implausible to contend that Article II overrides Congress’s obstruction of justice statutes in circumstances where the President is acting to advance “narrowly personal, pecuniary, or partisan interests.”

Not a game

No one is more powerful than the law, the scholars argue, stating:

The Office of the President is not a get out of jail free card for lawless behavior. Indeed, our country’s Founders made it clear in the Declaration of Independence that they did not believe that even a king had such powers; they specifically cited King George’s obstruction of justice as among the “injuries and usurpations” that justified independence. Our Founders would not have created—and did not create—a Constitution that would permit the President to use his powers to violate the laws for corrupt and self-interested reasons.

Parting shot

Finally, the law professors gently remind White House attorneys of their grave duties, just one group of super-lawyers to another, concluding:

We have no doubt that you take your professional roles very seriously—and we hope our legal analysis above provides some illumination as you continue to advise your client to faithfully execute our laws and to take care that those laws are faithfully executed throughout the Executive Branch.

Consider them schooled.