President Trump’s lawyers have provoked great consternation of late by laying out a theory of executive power that is sufficiently broad as to leave open the possibility that the president of the United States is legally permitted to pardon himself. The most common response to this asservation has been that the president, who has subsequently endorsed the idea, is gearing up to insist that he is “immune from the law,” or, more bluntly, that he is allowed to “get away with his crimes.” A few observers have added that this capacity, if exercised in response to a Mueller-secured conviction, would effectively make Trump a “dictator.” We are, it seems, on the verge of a new dawn.
That it would be a disgrace for Trump to take such a step is self-evident. As a matter of elementary political hygiene, voters must always oppose politicians who would separate themselves from the law. But I must confess to fearing that, should Trump elect to go down this road, we will comfort ourselves with the insistence that the cause of the crisis was this president rather than a persistent structural imbalance that has been nine decades in the making. I must confess to worrying, too, that we will respond by damaging the constitutional order in a misguided attempt to save it. There’s not been much reflection to go along with the outrage. This will only matter if we let it.
Over the course of the last century, Americans have inflated the executive branch to a size and influence that was never imagined by the Founders. This inflation has trained us into some perverse habits, the most pernicious among which is that we now consider the presidency, rather than Congress, as the central player within the federal system, and, in consequence, that we expect any defects within the White House to be fixed by the White House itself. It is said reflexively these days that the three branches of the federal government are “co-equal.” But this, I’m afraid, is badly incorrect — a hangover from the Wilson era, during which the president hoped to make himself the unquestioned leader of the people. The three branches are separate, certainly, and they enjoy discrete powers and functions. But they are not “equal” in any meaningful way. On the contrary: Congress, by design, is far more powerful than are the other two. That matters a great deal.
If it so wishes, Congress can remove the president, the vice president, and the cabinet for any reason whatsoever; the executive, by contrast, cannot remove, dismiss, or so much as contrive a schedule for Congress. Congress can pass legislation without the executive’s assent, and it can veto his choices for the cabinet and the judiciary; the executive, try as it might, can do nothing legislatively without Congress. Congress can abolish, merge, or reconstitute all of the federal courts bar one; none of the courts, including the Supreme Court, can remove Congress. Congress can initiate the constitutional-amendment process; the president and the courts can do nothing about it. So powerful is Congress, in fact, that it can remove the president and vice president on a whim, and make any eligible American citizen president instead — even if that citizen hasn’t been elected to anything. Congress, put bluntly, is supreme.
Which is to say that if one is worried about the president abusing his powers, one should ultimately be worried about Congress’s growing decumbency, as it is this more than anything else that has caused our present predicament. Alas, as is so often the case, we seem determined to confuse the legal for the political, and personal for the structural, and thereby to miss the restorative that sits before us. I wrote that Trump was threatening to “abuse,” rather than “exceed” his powers. That was deliberate, for there is a significant difference between a branch’s acting ultra vires and a branch’s acting inappropriately. Equal though they are not, the three branches are explicitly separate, and, as a result, many of the powers contained within Article II are not only extremely broad, but are walled off from direct oversight by the other branches. One would not know this from the tone of the discussion around Trump’s claim, but it is not at all obvious that the president is legally forbidden to pardon himself — or at least, that if he did pardon himself, it would necessarily be justiciable. By contrast, it is clear that there is a readily available remedy for such a move, and that that remedy is Congress. The legislature’s impeachment power, remember, is not a legal one, but a political one. Moreover, per the Constitution’s text, there is no established meaning of the phrase “high crimes and misdemeanors.” Under our present system, the House invents the charges, the Senate decides if they should stick, and the Supreme Court sits impotently on the sidelines. In theory, Congress could elect to remove the executive because it didn’t like his hair. Without doubt, it could remove him for electing to pardon himself. And, if it did, there is nothing he could do about it. The authority of the legislature over the fate of the president is unbounded and absolute.
Because we have forgotten this, we have been led down a peculiar rabbit hole in which our imperial executive is held up as both our destruction and our salvation. In a sensible world, it would be Congress, rather than the executive, that was tasked with investigating President Trump. Indeed, without needing to so much as speak to prosecutors in the executive branch, Congress could fulfill the role. It could create a select committee charged with looking into Trump’s conduct; it could use its subpoena power to obtain any information it needs; and, if the executive declined to play ball, it could forgo the charade by which the DOJ must enforce its judgment of contempt and threaten to begin impeachment hearings. Instead, we are living in a cartoon. How preposterous it has been to watch pundits and partisans determine how a department that is run by the president should best investigate the president. How farcical it is to witness the president being warned not to interfere with an investigation that he is in charge of, and to decline to determine who may or may not stay on a team that he himself runs. How odd seems the prospect that if Trump’s own team thinks he’s guilty, he’ll be asked, in practice, to walk out of his office and arrest himself. I have grown tired of hearing otherwise educated people try to square their circles by casting the Department of Justice as a de facto fourth branch of government rather than as a part of the executive branch. I have become exhausted, too, by the failure to think through the results of its being treated as separate somehow. If, as is often claimed, the president would be acting like a “dictator” were he to remove the man who is investigating him, what would that make that investigator, who would not be able to be removed? The tools being used here are the wrong ones, and we’re losing our minds as a result.
The usual response to such a charge is a scoff. “Ha! Good luck getting members of a political party to impeach their own president!” This reaction is understandable — and perhaps even inevitable. But it is not especially useful. Certainly, it would be a good thing if we could assume without much reflection that Congress were jealous of its prerogatives and hostile toward partisan corruption. But if it isn’t, as seems to be the case at the moment, that doesn’t actually change much in practice. The powers the three branches enjoy are written in stone; they do not ebb and flow in response to transient irritations. And, if the branches use them stupidly, the designated backstop is not Santa Claus, but the people. If Trump were to pardon himself, and the Republicans in Congress were to do nothing, they would presumably pay a heavy price at the polls. And if they didn’t — if, in effect, we learned that the polity does not care enough about egregious violations of principle — well, then America has much, much deeper problems.
If the nightmare scenario comes to fruition, we will ultimately have two choices. The first: to continue the pretense that the executive will self-correct — or, even, to insist that there is some magical “fourth branch” of government that will eventually deliver us from evil. The second: to set about restoring Congress to its rightful place in the pantheon. Our current predicament is the result of our own reluctance to demand the latter — a reluctance that has now stained American politics for almost a century. For decades we have put crowns on men’s heads, and hoped it all works out for the best. Recently, we have come to regret that choice a little, but we have done nothing to address our mistakes. If we change our minds, we should rest assured that the antidote sits just one mile down the road from the White House, in the heart of Capitol Hill. This is America, not Venezuela. We need not pray that the King will police himself.