It is now obvious that the President of the United States is under criminal investigation, ranging from possible obstruction of justice to money laundering. President Trump has hired an extensive—some would say less than impressive—legal defense team. Thus far, Special Counsel Robert Mueller’s investigation has produced indictments against four of the president’s associates: Paul Manafort, Rick Gates, George Papadopoulos, and Michael Flynn.
These indictments have cast the president’s legal team in a state of utter disarray, with one team member openly admitting that his representation has been “sloppy.”
President and Obstruction of Justice
In defense of the president, one of his attorneys said it did not matter if the president colluded with the Russians to get elected president because “collusion” is not a crime while another said the president cannot be charged with obstruction of justice despite the fact that former presidents Bill Clinton and Richard Nixon were charged with obstruction of justice in the articles of impeachment filed against them.
The disarray in the president’s legal team has fueled media and political speculation that Trump will pardon Michael Flynn to prevent him from cooperating with the Mueller investigation and that, as president, Trump is above the law as suggested by his famed defender, former Harvard Law Professor Alan Dershowitz.
We have recently dealt with both of these serious constitutional issues (here and here).
Chief Law Enforcement Officer Not Above the Law
In support of these constitutional issues, the president’s legal team offers the preposterous assertion that Trump is the nation’s “chief law enforcement officer,” and as such, he can do pretty much what he pleases.
There is nothing in Article II of the U.S. Constitution that suggests the President is the nation’s chief law enforcement officer. The president has seven historically recognized constitutional duties. These duties are spelled out on the scholastic.com website:
- Chief of State. This role requires the president to be an inspiring example for the American people, a living symbol of the nation.
- Chief Executive. The president is the “boss” for millions of government worker in the Executive Branch, deciding how laws should be enforced.
- Chief Diplomat. The president decides what American diplomats and ambassadors shall say to foreign governments thereby shaping the nation’s foreign policy.
- Legislative Leader. While Congress enacts all the laws of the nation, the Constitution gives the president the power to influence its lawmaking.
- Commander in Chief. The president is in charge of the U.S. Armed Force: Army, Navy, Air Force, Coast Guard, and Marine Corps. All military personnel take orders from the president.
- Chief of Party. The president directs the course of his or her political party.
- Guardian of the Economy. The president monitors such things as unemployment, high prices, business profits, and the general prosperity of the country.
None of these powers, duties and responsibilities recognizes the president as the nation’s “chief law enforcement officer.” The White House’s own website recognizes the Attorney General of the United States as the nation’s chief law enforcement officer.
Attorney General is Chief Law Enforcement Officer
By definition, the Attorney General is unquestionably the chief law enforcement officer of the United States. The FBI is the agency within the Justice Department that conducts criminal investigations for the Attorney General and his assistants to prosecute in a court of law. While many legal scholars believe the president through his executive powers may fire the Attorney General and/or Director of the FBI, he or she cannot interfere with, much less override, the constitutional responsibility of the FBI to “investigate all criminal violations of federal law.”
All members of the U.S. Justice Department, including the FBI, are civil servants of the United States Government. Under the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(9)(D), it is illegal to remove a civil servant “for refusing to obey an order that would require the individual to violate a law.” A presidential order to stop a criminal investigation, especially one involving the president himself, is an unlawful order that should be disobeyed.
The constitution directly demands that the Attorney General through the FBI investigate violations of federal law, even if those suspected violations involve the President, his family, and/or political associates. President Trump obviously believes the Russian collusion story is “fake news” and that he has the power to thwart lawful efforts to give credence to the story.
While the president can fire all the people he wants in the Justice Department and FBI, there will remain far more honest people in this law enforcement agency than there are corrupt ones.
Trump Presidency Nonstop Assault on American Soul
We are a nation of laws. We live by their demands. Writing last May for Vox, columnist Will Wilkinson made this observation about President Trump’s contempt for the rule of law:
“Whether or not Trump was legitimately elected, his presidency thus far has been a nonstop assault on America’s legitimacy-enabling institutions. You can bracket the question of Russian influence and still find Trump up to his bronzed wattle in financial conflicts of interest, nepotism, and naked aggression against every attempt to subject him to the rule of law. It was always going to turn out this way.
“Trump’s basic tactic – and it’s his only tactic – is to viciously attack the perceived legitimacy of any person or institution standing in his way while aggressively stimulating the public’s authority-identification gland through charismatic bravado and self-aggrandizing lies. Trump really will say anything – that you’re a bastard impostor, secretly Canadian, guilty of disqualifying crimes, low-energy, little, lying, crooked; that he’s 12-feet tall, the smartest human ever tested, worth a zillion dollars, doesn’t need sleep – whatever it takes. And because he’s a master of authoritative self-presentation, gullible people are inclined to believe him. It is a cretinous, bullying, dead-simple that Trump deployed with remorseless (if sometimes ham-fisted) cunning all the way to the White House.”
President Cannot Quash Legitimate Investigations
Despite his wily, beguiling school yard inherited bullying nature, President Donald J. Trump cannot defeat the rule of law in this country. Laws have brought down many corrupt, seedy politicians long before this president told his first official lie in his oath of office; namely, that he would preserve, protect and defend the Constitution of the United States.
Try as they might, the president’s defense team cannot make him the nation’s chief law enforcement officer with the power to quash any and all criminal investigations that conflict with his personal interests—something that is a clear violation of his constitutional duties.
Rule of Law More Powerful Than President
In an address at Harvard University last June, U.S. Supreme Court Justice Neil Gorsuch—the man Trump put on the court—told an audience:
“I think there is a lot of skepticism about the rule of law, but I see it day in and day out in the trenches – the adversarial process of lawyers coming to court and shaking hands before and after, the judges shaking hands as we do, before we ascend to the bench. That’s how we resolve our differences in this society.”
It is that rule of law – the one found in the trenches of courtrooms every day in this country – that will ultimately be the downfall of the current president of these United States. The rule of law is stronger than this president or any president.