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IDEAS DONALD TRUMP

Trump’s Constitutional Bullying Is a Threat to Our

Democratic Safeguards
9 MINUTE READ

The threat Donald Trump’s constitutional ambitions pose for the rule of law manifests beyond the campaign trail, writes
Michael Gerhardt. Here, Trump is pictured at a campaign rally in South Carolina on Feb. 10, 2024. Win McNamee—Getty
Images

BY MICHAEL GERHARDT FEBRUARY 11, 2024 12:46 PM EST

IDEAS Michael Gerhardt is a Burton Craige distinguished Professor of Jurisprudence at the University
of North Carolina at Chapel Hill.

Y ou can tell a lot about presidents from their constitutional rhetoric and
actions. Presidents Abraham Lincoln and Franklin D. Roosevelt excelled
in fashioning compelling visions of the Constitution and constitutional ideals.
Lincoln urged his fellow Americans to act in accordance with “the better angels

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of our nature” rather than give into the temptation of dividing the nation
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irreparably, while Roosevelt assured the nation that “the only thing to fear is
fear itself” and pledged a “New Deal” to restore the American dream. In 1903,
President Theodore Roosevelt told Congress: “No man is above the law and no
man is below, nor do we ask for any man’s permission when we require him to
obey it. Obedience to the law is demanded as a right; not asked as a favor.”

Donald Trump is a different story. During his four years as President, he

proclaimed that he had “total authority” to do whatever he wanted to do. That
he was immune from any civil or criminal process for anything he did as
President, that he was entitled to defy lawful congressional subpoenas without
any sanction, that he could not obstruct the law since he was the law himself,
and that he had the power to pardon himself. Perhaps most egregiously, he
declared that he was exercising his official powers as President when he urged
a mob “to take back their country” on Jan. 6, culminating in unprecedented
violence and damage at the Capitol.

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In his third campaign for the presidency, Trump continues to do what he does
best—bullying, boasting, lying, and promising “retribution” against his
political enemies. He has vowed, in a second term, to root out “the radical left
thugs that live like vermin within the confines of our country.” He has
promised to prosecute President Joe Biden and has previously threatened the
losing candidate in the 2016 presidential election, Hillary Clinton. Trump
further argues that he is entitled to an immunity he never had as President—
that he has impunity from criminal prosecution for misconduct for which he
was not previously convicted and removed by Congress. In short, Trump is
desperate to be above the law.

This argument has been rejected in every court in which it has yet been made.
In the 1980s, courts rejected the arguments of three judges who claimed they
could not be impeached after they had been criminally prosecuted. Just last
week, a three-judge panel of the U.S. Court of Appeals for the District of
Columbia, in a thorough, well-reasoned opinion, rejected Trump’s claim he was
entitled to immunity for criminal misconduct, even ordering the killing of his
political rivals, for which he was not previously been impeached, convicted,
and removed. The court rightly emphasized that “former President Trump’s
stance would collapse our system of separated powers. Presidential immunity
against federal indictment would mean, as to the President, that Congress
could not legislate, the executive could not prosecute, and the judiciary could
not review. We cannot accept that the office of the presidency places its former
occupants above the law for all time thereafter.”

Trump’s argument also conflicts with the Supreme Court’s decision in 2020
while he was in office, that a sitting President may be subject to state criminal
investigation. The Court said nothing about an impeachment conviction as a
prerequisite for criminally investigating a President, because there is none.

The threat Trump’s constitutional ambitions pose for the rule of law manifests
beyond the campaign trail. He asked his fellow partisans in the House, once

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they retook control in 2022, to impeach President Biden because “they did it to
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me.” The House Republicans, under former Speaker Kevin McCarthy and
current Speaker Mike Johnson, who was an architect of Trump’s plan to
overturn the 2020 presidential election, have obliged. While impeachment
hearings have given Republican House members free airtime to trash the
President, even some Republicans have conceded there is no evidence Biden
committed any impeachable offenses.

Differences between the Republican leadership and President Biden over

immigration policy are at the root of the effort to impeach Secretary of
Homeland Security Alejandro Mayorkas, an attempt that fell short earlier this
week, with the final tally coming to 214-216. That vote, the first of what will
likely be many attempts to impeach Mayorkas, reaffirmed that policy
disagreements are illegitimate grounds for impeachment. Indeed, the framers
rejected including “maladministration” as a basis for impeachment in the
Constitution, meaning that they rejected extending impeachment to
incompetent or poor performance in office. Moreover, the first President to be
impeached, Andrew Johnson, fell one vote short of conviction in the Senate
based on the recognition that it was inappropriate to use the process to address
Congress’ policy differences with President Johnson. As Chief Justice William
Rehnquist, appointed by President Reagan, explained in his book, Grand
Inquests: The Historic Impeachments of Justice Samuel Chase and President
Andrew Johnson, Johnson’s acquittal clarified that “impeachment would not be
a referendum on the public official’s performance in office.”

In the meantime, Republican House members’ relentless investigations into

the misconduct of President Biden’s son, Hunter, are nothing more than
extensions of an already discredited defense Trump raised against his first
impeachment—namely that, as Vice President, Biden fired a Ukrainian
prosecutor to protect his son from investigations into a company on whose
board Hunter then sat. Then-Vice-President Biden was not only following
President Obama’s foreign policy priorities, but he was also removing a
prosecutor who was widely considered corrupt. Nothing problematic has been
uncovered since, except Republican rhetoric has become increasingly over-

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heated.
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Moreover, the House’s months-long investigations into Hunter’s legal troubles

contradicts the directives of the Supreme Court. In Trump v. Mazars in 2020,
the Supreme Court declared that a congressional subpoena is valid only if “it is
related to, and in furtherance of, a legitimate task of the Congress.” The Court
recognized that a fishing expedition was not “a valid legislative purpose.” The
Court further emphasized that the House has no legitimate purpose in giving
itself power over “law enforcement,” because that power belongs to the
President and the Justice Department, not Congress. This has not stopped
several Republican House members from engaging in wild speculation and
accusations of criminal misconduct on the part of both President Biden and his
son. Speaker Mike Johnson has called the Biden family “hopelessly corrupt,”
though the Republicans’ own expert witness, Professor Jonthan Turley, said in
the one hearing on President Biden’s possible impeachment last September
that he did not “believe that the current evidence would support articles of
impeachment.” Turley, as well as moderate Republicans in the House and
Senate, have said there is no evidence Secretary Mayorkas has committed any
impeachable offense.

None of that will stop Speaker Johnson from persisting to impeach Mayorkas.
His starkly partisan agenda is evident from his urging the impeachment of
Mayorkas rather than supporting the bipartisan bill negotiated in the Senate to
bolster security at our southern border. His priorities are seemingly to try and
damage Biden, rather than solving the border crisis.

Perhaps Trump and his supporters’ most dangerous constitutional declaration

has been in response to the controversy over section 3 of the 14th amendment,
the meaning of which was at the heart of a Supreme Court argument this past
Thursday. Democratic members of the House and well-respected constitutional
scholars contend that the section, which provides that anyone who has
“engaged in insurrection” is ineligible to hold federal office, renders Trump
ineligible to run for or serve again as President. Trump has predicted “bedlam
in this country” and “big, big trouble” if he loses that and other cases in which
he is being charged with fraud and misconduct.

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he is being charged with fraud and misconduct.

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If Trump’s bellicose language is familiar, it is because it should be. His fluency
in making threats of violence was nowhere more on display than Jan. 6. Trump
encouraged his supporters “to fight back” and “to take back their country,”
then urged them to march to Congress. By now, most of us have seen the videos
of those people damaging the building and vowing to kill then-Speaker Nancy
Pelosi and then-Vice-President Mike Pence.

It is hard to imagine a more dangerous (and flawed) claim than that fear of
violence should trump (no pun intended) the rule of law. Congress did not
allow the violence on Jan. 6 to prevent it from certifying the outcome of the
2020 presidential election later that same day. Nor did the Supreme Court allow
threats of violence to dissuade it from deciding important constitutional
decisions during the Civil War and both world wars. Threats of violence did not
dissuade the Court from striking down state-mandated segregation of the races
in public schools. Nor have such threats led lower federal courts to reject
Trump’s most outlandish claims.

As, for instance, did the Federal Court of Appeals in dismissing Trump’s claim
of immunity from any criminal prosecution for misconduct for which he had
not been previously impeached, convicted, and removed from office. The
Supreme Court, based on oral arguments on Thursday of this week, appears
prepared to rule in Trump’s favor in his lawsuit challenging state officials
taking his name off the ballot in the Republican primaries for President.

Regardless of how the court rules on Trump’s lawsuit challenging his removal
from the ballot in Colorado, it is worth remembering that, at the end of
Trump’s second impeachment trial, even Mitch McConnell, Republican leader
in the Senate, condemned Trump’s actions in inciting supporters to storm the
Capitol. Indeed, Trump’s counsel conceded in his oral argument before the
Supreme Court this week and characterized the events on Jan. 6 as a “shameful,
violent riot.”

In 1776, Thomas Paine told the world that, in the free republic which America

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In 1776, Thomas Paine told the world that, in the free republic which America
aspired to become, “the law is king.” The Constitution made good on that
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proclamation in ensuring that, in this country, no one was above the law. But
Trump and his allies will no doubt continue to challenge that principle in the
weeks and months ahead. Trump has recently suggested he will be too busy
making America great again to wreak revenge on his political enemies. That
off-hand comment did not last long, as Trump, flush from winning political
primaries in Iowa and New Hampshire, has returned to making outlandish
promises of vengeance against anyone who disagrees with him. Next fall’s
election, even more than the last, will test whether the Constitution and its
democratic safeguards, not revenge or threats of violence, will be as the
Constitution says, “the supreme law of the land.”

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