Ira C. Lupu // 5/18/17 //
The Republic is in an uproar over the latest series of shocking misdeeds by the President. These include the dismissal of FBI Director Comey, the loose and dangerous sharing of information about ISIS and aviation safety with high level Russian officials, and the President’s reported request that Comey drop the criminal investigation of Michael Flynn the day after the President fired Flynn as National Security Adviser.
My focus in this comment is on the language that the President and others are using to defend or justify his behavior. The morning after the Washington Post broke the story about sharing highly classified information with the Russians, Trump tweeted that he had “the absolute right to [share with Russia] facts pertaining to terrorism and airline flight safety.“ This language is deeply misleading and flat wrong. Presidents do not have “rights” in the conduct of their office. Presidents have rights as citizens, the same as all others, such as freedom of speech, religion, and the protections of due process in a lawsuit.
When a President acts under her Article II authority as President, however, she has “the executive Power,” not rights. And the executive Power, which includes the power to appoint officers of the United States, and to act as Commander in Chief of the armed forces of the United States, is limited. The Constitution itself specifies the duties and responsibilities that confine those powers. On the day she takes office, the President swears that she “will faithfully execute the Office . . . and will preserve, protect, and defend the Constitution of the United States.” The final two phrases of Article II are the most particular. As the title of this blog reminds us, the President is responsible “to take Care that the Laws be faithfully executed.” And Art. II section 4 is the most explicit injunction that the President does not have unlimited power and is not free to act for any reason: “The President . . . shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
What do these boundaries on Presidential action mean in operation? Most significantly, they utterly eliminate the argument that the President can act for any reason.
Even James Comey, in his farewell letter to the FBI, fell into the trap of suggesting “the President can fire an FBI director for any reason, or for no reason at all.” It is true that the law providing for the appointment of an FBI director does not require “good cause” for removal. So if Comey meant that he had no statutory basis for challenging the firing in court, and receiving an award of money or an order of reinstatement, then he spoke correctly. But suppose he was fired because a Russian gangster paid the President a bribe in exchange for the firing. That would be an impeachable offense, for which the President could be removed from office, and a crime against the United States, for which the former President could be prosecuted once he was removed from office.
If the President fired Comey in an attempt to obstruct an investigation into the Russian connection, that too would constitute an impeachable offense and a crime.
More gravely still, suppose the President shared classified information with Russian officials because he wanted to help an enemy of the United States, even if doing so would hurt our country. This is a moment in our history when we need to be reminded of the constitutional definition of treason – “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” Russia’s acts of cyberwar against the integrity of our Presidential election arguably make Russia our enemy. The notion that the President has “an absolute right” to commit treason is lunacy.
The language of Presidential rights and absolute power to act is obviously appealing to the President and his collaborators. But the Constitution is not structured to protect such absolutist claims. The President does not serve by divine right or some mystical will of the People. The reasons for the President’s actions always matter. When a President acts to unlawfully line his pockets; obstruct justice on behalf of himself, his family or his supporters; or betray his country’s interests, he can be called to account. And the time for that reckoning appears to be getting closer every day.