The rule of law is designed to place constraints on individual and institutional behavior. It is to suggest all members of a society, regardless of their social location are considered equally subject to legal codes and processes; and no one is above the law.
But this objective egalitarian notion is subjective when it comes to the occupant of the Oval Office. Contrary to cable talk shows, blogs, bars and barbershops, Donald Trump is not the first to test the elasticity of the executive branch. What’s at stake is not the president’s behavior but the response to it.
The office of the president is unique from the other branches of government. The Supreme Court is composed of nine robed justices; Congress has 535 members (435 House and 100 Senate), but the presidency is a single individual and the office of the president can organically take on an exterior of the person occupying the office.
How does one distinguish the difference between the office and the officeholder? Support for behaviors in one president that one would conclude is beyond the constitutional guardrails of another, especially if the individuals are from different political parities, is a good sign understanding of the office and officeholder have been conveniently conflated.
Would support for President Trump’s decision to ignore congressional subpoenas garner similar approval if conducted by former President Barack Obama?
In 1832, Chief Justice Marshall, in the landmark case, Worcester v. Georgia, provided in his opinion a framework for the relationship between Indian nations and the United States. President Andrew Jackson reportedly stated: “John Marshall has made his decision, let him enforce it.”
From the Declaration of Independence to the Federalist Papers to Constitution, there is an implied assumption that America’s democratic form government is based on the desire to make it work. We have now potentially stumbled upon a loophole not conceived by Alexander Hamilton, James Madison or John Jay, who penned under the pseudonym Publius their collective vision of the forthcoming Constitution.
Congressional subpoena power is not expressly stated in Article 1 of the Constitution. Nor does the Constitution bequeath the president with executive privilege in Article 2.
The president and his cohorts appear to have embraced the tactic of ignoring congressional subpoenas without an overall strategy. Consistent with his transactional methodology, the president has chosen to ignore congressional subpoenas supported by a slew of partisan invectives levied toward key members of the Democratic House.
White House Counsel Pat Cipollone wrote an eight-page letter to House leadership informing them that the president will not cooperate. It was striking in that many of his legal and constitutional arguments were lacking merit.
Moreover, it was written more to defend the interests of Donald Trump, ignoring the institutional interests of the presidency. Perhaps Cipollone was boxed in, attempting to make do with a bad hand.
Those who argue the impeachment inquiry is partisan are absolutely correct. At this stage of the process, has there been an impeachment inquiry that wasn’t partisan? Andrew Johnson? Richard Nixon? Bill Clinton?
The burden on the House Democrats is to conduct a process that must rise above partisan rancor, should it uncover a smoking gun. Though impeachment is a political process it must demonstrate that the individual in question is not worthy to hold the office and not some kangaroo court whose outcome was predetermined.
But the president is also engaging in partisan warfare. His constitutional atheism may have him in a vise grip, from which he may be unable to escape. It does not bode well for his case that his White House counsel must mount a defense void of constitutional and legal reasoning to justify systematically ignoring congressional subpoenas.
What is to become of the republic if this president is allowed to ignore the will of the legislative branch beyond anything conceived by the Founders?
What’s to say he wouldn’t also ignore any ruling by the judiciary that was not to his liking? The latter consideration would turn over Marbury v. Madison (1803), which established the precedent of judicial review, on its head.
If the president’s blatant disregard of the democratic guardrails is allowed to go unscathed, what is the fate of the republic going forward? The answer to that question transcends the outcome of this president, but rather the fate of a people bound by a radical idea fortified by liberty and equality.
These ramifications are the broader concerns if we are to remain in the sandbox of politics. If the legislative branch loses its investigative powers to shine light on potential wrongdoing, then the notion of separation of powers would be rendered obsolete — ours would be a democracy in name only.