BIDLACK | L’état, c’est moi
Author: Hal Bidlack - June 15, 2018 - Updated: June 15, 2018
When France’s King Louis XIV uttered the famous words “I am the State,” he was stating what he saw as obviously true — that as the absolute monarch, chosen (at least in his mind) by God, he was above any law made by mortal man. He asserted that he held all political and governmental authority. Scary.
When the Founders crafted our Constitution, they had people like Louis in mind — unlimited power concentrated in the hands of a single person. Indeed, the fear of the too much power being concentrated in a single person or place drove the creation of three separate and co-equal branches, with built in checks and balances to ensure that no single entity would grow too strong.
But the Founders couldn’t think of everything…
In some ways they were limited by the times in which they lived — where information could travel no faster than a galloping horse or a ship at sea. Thus, the creation in Article 1 Section 8 of an Army and a Navy, but of course, no Air Force. When teaching this subject at the AF Academy, I used to chide my students (and still do to my “strict constructionist” friends) about whether the Air Force is constitutional, since it isn’t specifically (strictly?) listed? I told them they could rest easy, as the Necessary and Proper clause shows the Founder’s vision beyond their own world and allows for a constitutionally acceptable Air Force.
So, what are we to make of the Founders and the pardon powers given to the president in the Constitution? At first blush, Mr. Trump is correct when he argues for a near-unlimited presidential power to pardon, as the words in Article 2 Section 2 simply state: The President shall…have power to grant reprieves and pardons for offenses against the United states, except in cases of impeachment. Pretty clear, right? And a president, such as the one we currently have, with visions of grandeur, may read those words and feel he has the power to pardon himself. His own lawyer said that Mr. Trump could murder Mr. Comey in the Oval Office, and he could then pardon himself for that crime. This same lawyer, and others, have argued that a president can’t, in fact, obstruct justice because the president oversees the Department of Justice. There is another way to put this argument: The President is above the law.
Let that sink in for a minute…
Which brings me back to the Founders not being able to think of everything. But they did have certain fundamental principles of what is right and wrong. James Madison, in his research to co-author the Federalist Papers, carefully studied ancient societies and confederations. The rule of law was one such ancient and ongoing tradition. As Teddy Roosevelt succinctly put it: No man is above the law and no man is below it – nor do we ask any man’s permission when we ask him to obey it.
And so we are left with Mr. Trump’s assertion, through both his own words and the legal statements made by his various lawyers, that a president can pardon himself. I think it unlikely that the Founders, knowing Washington would be the first president and with men like Adams, Jefferson, and Madison, in the pipeline, considered the need to make it explicit in the Constitution that no American gets to be his or her own judge and jury. We are, as a nation, above that. And to briefly run a bit partisan, had Hillary taken office, and then decided to pardon herself for her many, many alleged crimes (ah, but that nonsense is for another column), do you honestly think that a defeated Mr. Trump, to say nothing of the GOP leadership, would argue she could get away with such a pardon? Man, I hate hypocrisy.
Mr. Trump’s recent pardon flurry has both broken precedent with previous administrations of both parties and seems to be crafted to send a message to Mr. Trump’s former employees in legal trouble that they shouldn’t worry too much about Mr. Mueller — the pardon pen is at the ready.
We’ve never really had a president before who seems to model himself to the extent possible on Louis the XIV (have you seen how much gold leaf Mr. Trump has on his own stuff?). And so, dear readers, and especially those fond of our president, do you really think anyone should be above the law? Should anyone be his or her own magistrate? I sincerely hope not.
Mr. Trump, you are most certainly not the State.