Revolutionary hero Patrick Henry knew this day would come. He may not expect all the details, such as the porn actress in the hotel room and the illegal payment to keep him. But he fears that eventually a criminal could occupy the presidency and use his power to block anyone who wants to be held accountable. “Away with your president,” he said, “we will have a king.”
That’s what the founders had to avoid, because they were thrown out of power by the king. But despite hard work to create checks and balances, the system created to hold errant presidents accountable has ultimately proven unstable.
Whatever rules Americans take for granted have now been rewritten by Donald J. Trump, the one-time and possibly future president who has broken many barriers and precedents. The idea that 34 felonies are not automatically disqualifying and criminal conviction can be a viable candidate for commander in chief upends two and a half centuries of the idea of American democracy.
And it raises fundamental questions about the limits of power in a second term, should Mr Trump return to office. If he wins, it means he will survive two impeachments, four criminal indictments, a civil trial for sexual abuse and business fraud, and a felony conviction. As such, it would be difficult to imagine what would prevent torture or institutional excess.
Additionally, the courts may not be the checks on the executive branch that they have been in the past. If no other cases are tried before the election, it could be four years before the court can consider whether the newly elected president endangers national security or illegally seeks to cancel the 2020 election, as he did. So, before the election, the Supreme Court could grant Mr. Trump at least some measure of immunity.
Mr. Trump still has to operate within the constitutional system, analysts point out, but has shown a willingness to push its boundaries. When he became president, he claimed that the Constitution gave him “the right to do whatever I want.” After leaving office, he advocated “suspension” of the Constitution so he could immediately return to power without another election and vowed to dedicate a second term to “retribution.”
His advisers have drawn up extensive plans to increase his power in his second term by cleaning up the civil service to install more political officials. Mr. Trump has threatened to sue not only President Biden but anyone else he considers an enemy. In seeking immunity from the Supreme Court, Mr. Trump’s lawyers even accepted the argument that there are circumstances in which the president can order the killing of a political rival without facing criminal charges.
“There is no useful historical precedent,” said Jeffrey A. Engel, director of the Center for Presidential History at Southern Methodist University. “The interesting issue is not that the former president has been tried and convicted, as the founders might have anticipated, but that he remains a viable candidate for office, which will be found surprising and ultimately uncomfortable.”
The question of how to create a powerful executive without making him an irresponsible monarch absorbed the framers as they drafted the Constitution. He divided power between the three branches of government and envisioned impeachment as a check on rogue presidents. He even made it clear that impeached presidents can still be prosecuted for crimes after being removed from office.
But even then, there are voices of concern that the limits are not enough. Among them was Henry, a patriot famous for his “give me liberty or give me death” speech. At the Virginia convention on ratifying the Constitution in 1788, he warned of the possibility of “absolute despotism”.
“The bottom line is that if a criminal president comes to power, that president will know there are some mechanisms to stop him,” said Corey L. Brettschneider, a Brown University professor who wrote about Henry in his upcoming book, “The President and the People: Five Threatening Leaders Democracy and Citizens Fighting for Democracy “They say the president will claim the throne.”
“My argument,” added Brettschneider, “is that this warning is even more true now because of the possible immunity of a sitting president from impeachment and the power we’ve seen after two impeachment attempts.”
Robert Kagan, a scholar at the Brookings Institution in Washington, warned in his new book, “Rebellion: How Antiliberalism is Tearing America – Again,” that Trump’s second term could lead to an abuse of power that cannot be enforced.
“With all the power of the American president, with the ability to control and direct the Department of Justice, the FBI, the IRS, the intelligence services and the military, what will prevent him from using the power of the state to go after his political enemies?” Mr. Kagan’s writing.
For Mr. Trump’s supporters as well as some of his critics, those concerns go too far. Allies maintain that if Mr. Trump makes provocative comments like being a “dictator” for a day, he’s just joking or pushing buttons to get a rise out of critics. The real crisis is not a lack of accountability for the president, he argued, but the politicization of the justice system against Mr. Trump.
Jonathan Turley, a law professor at George Washington University who was in the Manhattan courtroom on Thursday when the jury returned a guilty verdict, called the case against Mr. Trump “a crude political use of the criminal justice system” and “killing the thrill” by his opponents. “What’s going on in that room is at a cost,” he said on Fox News. “It costs the rule of law.”
Even some who do not support Mr. Trump argue that the dangers of an unchecked executive are overwrought. Eric Posner, a professor at the University of Chicago Law School who wrote his own book calling Mr. Trump a demagogue testing American democracy, said the former president was too “weak” and incompetent to run a true dictatorship.
“Trump exists and there are many things, most of them are bad,” Mr. Posner wrote last season in response to a Washington Post column by Mr. Kagan. “But he was not a fascist when he was president, and he will not be a dictator if he is re-elected.” While Mr. Trump terrorized the crowd and spread lies to try to stay in power, Mr. Posner added, “he failed miserably.”
American lawmakers have struggled to create an independent mechanism to hold the president accountable without appearing tainted by politics to the point of losing credibility with the public. The issue has come up repeatedly over the last half century without a consensus resolution.
Nine of the last 10 presidents have had a special counsel or independent counsel investigate themselves or others in the administration — the only exception being Barack Obama. (Gerald R. Ford’s campaign finances were scrutinized while he was vice president and no expenses were incurred.)
Neither face a serious risk of criminal charges before Mr Trump goes so far. Richard M. Nixon escaped prosecution for the Watergate coverup by resigning and then receiving a pardon from Mr. Ford, his successor. Bill Clinton avoided possible perjury and obstruction of justice charges stemming from his relationship with Monica S. Lewinsky by making a deal with prosecutors on his last day in office in which he admitted to providing false testimony under oath and surrendering his law license.
Remember that when Nixon fired the first special prosecutor investigating Watergate, Congress passed an independent counsel law creating prosecutors theoretically insulated from politics. But the Republicans grew disenchanted with the model that after Lawrence Walsh’s Iran-contra investigation, as well as Democrats after the Ken Starr Whitewater investigation, so that Congress avoids passing laws.
The special counsel who has investigated subsequent presidents, including Mr. Trump and Mr. Biden, was appointed by the attorney general at the time. While they have considerable autonomy, they are not independent and therefore their investigations and conclusions are often attacked as political, even when there is no evidence of interference.
After enduring the Russia investigation by special counsel Robert S. Mueller III and the current election interference and classified documents investigation by special counsel Jack Smith, Mr. Trump is unlikely to appoint an attorney general who would allow Mr. Smith to proceed. work, much less the name of any new special advisor to look into people.
However, Mr Trump has proven that moving forward regardless of scandals, investigations and trials is politically viable – at least so far. He is on track to win the Republican presidential nomination for the third time and at least has a chance of beating Mr. Biden to return to the White House. If he does, he will set a new standard for what is considered acceptable in the presidency.
“I think the biggest thing is how lucky we are as a nation to have a president who generally treats himself with dignity, or at least respects the dignity of the office,” said Lindsay M. Chervinsky, the incoming executive director of the office. George Washington Presidential Library and author of “Making the Presidency,” a book about John Adams to be published in September. “This conviction brings into sharp relief how Trump has rejected that tradition.”
