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The system of checks and balances established in the Constitution was meant to hold wayward presidents accountable, but some wonder how it will work if the next president is already a felon.
An illustration of Patrick Henry, who warned at the Virginia convention on ratifying the Constitution of the possibility of “absolute despotism.”Credit…Library of Congress
By Peter Baker
The revolutionary hero Patrick Henry knew this day would come. He might not have anticipated all the particulars, such as the porn actress in the hotel room and the illicit payoff to keep her quiet. But he feared that eventually a criminal might occupy the presidency and use his powers to thwart anyone who sought to hold him accountable. “Away with your president,” he declared, “we shall have a king.”
That was exactly what the founders sought to avoid, having thrown off the yoke of an all-powerful monarch. But as hard as they worked to establish checks and balances, the system they constructed to hold wayward presidents accountable ultimately has proved to be unsteady.
Whatever rules Americans thought were in place are now being rewritten by Donald J. Trump, the once and perhaps future president who has already shattered many barriers and precedents. The notion that 34 felonies is not automatically disqualifying and a convicted criminal can be a viable candidate for commander in chief upends two and a half centuries of assumptions about American democracy.
And it raises fundamental questions about the limits of power in a second term, should Mr. Trump be returned to office. If he wins, it means he will have survived two impeachments, four criminal indictments, civil judgments for sexual abuse and business fraud, and a felony conviction. Given that, it would be hard to imagine what institutional deterrents could discourage abuses or excesses.
Moreover, the judiciary may not be the check on the executive branch that it has been in the past. If no other cases go to trial before the election, it could be another four years before the courts could even consider whether the newly elected president jeopardized national security or illegally sought to overturn the 2020 election, as he has been charged with doing. As it is, even before the election, the Supreme Court may grant Mr. Trump at least some measure of immunity.
Mr. Trump would still have to operate within the constitutional system, analysts point out, but he has already shown a willingness to push its boundaries. When he was president, he claimed that the Constitution gave him “the right to do whatever I want.” After leaving office, he advocated “termination” of the Constitution to allow him to return to power right away without another election and vowed to dedicate a second term to “retribution.”
His advisers are already mapping out an extensive plan to increase his power in a second term by clearing out the civil service to install more political appointees. Mr. Trump has threatened to prosecute not only President Biden but others that he considers to be his enemies. In seeking immunity from the Supreme Court, Mr. Trump’s lawyers even embraced the argument that there are circumstances when a president could order the assassination of a political rival without criminal jeopardy.
“There is no useful historical precedent whatsoever,” said Jeffrey A. Engel, the director of the Center for Presidential History at Southern Methodist University. “The interesting matter is not that a former president has been tried and convicted, as the founders might well have anticipated, but that he remains a viable candidate for office, which they would have found astounding and ultimately disheartening.”
The question of how to create an empowered executive without making him an unaccountable monarch absorbed the framers when they designed the Constitution. They divided power among three branches of government and envisioned impeachment as a check on a rogue president. They even explicitly made clear that an impeached president could still be prosecuted for crimes after being removed from office.
But even then, there were voices worried that the limits were not enough. Among them was Henry, the patriot famed 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.”
“His point is that if such a criminal president comes to power, that president will realize there are few mechanisms to stop him,” said Corey L. Brettschneider, a Brown University professor who writes about Henry in his forthcoming book, “The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It.” “He goes so far as to claim that such a president will claim the throne of a monarch.”
“My argument,” Mr. Brettschneider added, “is that this warning is even more true now given the possible immunity of a sitting president from indictment and the powerlessness that we have seen after two attempted impeachments.”
Robert Kagan, a scholar at the Brookings Institution in Washington, warned in his new book, “Rebellion: How Antiliberalism Is Tearing America Apart — Again,” that a second Trump term could result in unfettered abuses of authority.
“With all the immense power of the American presidency, with his ability to control and direct the Justice Department, the F.B.I., the I.R.S., 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 wrote.
To Mr. Trump’s supporters and even some of his critics, such concerns go too far. His allies maintain that when Mr. Trump makes provocative comments like being a “dictator” for a day, he is either joking or pushing buttons to get a rise out of his critics. The real crisis is not a lack of accountability for presidents, they argue, 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 its guilty verdict, called the case against Mr. Trump “a raw political use of the criminal justice system” and a “thrill kill” by his opponents. “What happened in that room comes at a cost,” he said on Fox News. “It comes at a cost to the rule of law.”
Even some who do not support Mr. Trump argue that warnings 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 who tests American democracy, said the former president was too “weak” and incompetent to execute a true dictatorship.
“Trump was and is many things, most of them bad,” Mr. Posner wrote last winter in response to a Washington Post column by Mr. Kagan. “But he wasn’t a fascist when he was president, and he won’t be a dictator if he is elected a second time.” While Mr. Trump riled up a mob and spread lies to try to stay in power, Mr. Posner added, “he failed completely.”
American lawmakers have struggled to devise an independent mechanism to enforce presidential accountability without seeming so tainted by politics that it loses credibility with the public. The issue has come up repeatedly over the last half century without a consensus resolution.
Nine out of the last 10 presidents have had a special counsel or independent counsel investigate themselves or someone in their administration — the lone exception being Barack Obama. (Gerald R. Ford’s campaign finances came under scrutiny while he was vice president and resulted in no charges.)
Neither of the two who faced serious risk of criminal charges before Mr. Trump let it get that far. Richard M. Nixon escaped prosecution for the Watergate coverup by resigning and then accepting a pardon from Mr. Ford, his successor. Bill Clinton avoided possible perjury and obstruction of justice charges stemming from his affair 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 gave up his law license.
Mindful that Nixon fired the first special prosecutor investigating Watergate, Congress passed the independent counsel law creating a prosecutor theoretically insulated from politics. But Republicans grew disenchanted with that model after Lawrence Walsh’s Iran-contra investigation, as did Democrats after Ken Starr’s Whitewater investigation, so Congress let the law lapse.
The special counsels who have investigated subsequent presidents, including both Mr. Trump and Mr. Biden, were appointed by the attorney general at the time. While they have considerable autonomy, they are not completely independent and therefore their investigations and conclusions have often been assailed as political, even without evidence of interference.
Having endured the Russia investigation by the special counsel Robert S. Mueller III and the current election interference and classified documents investigations by the special counsel Jack Smith, Mr. Trump is hardly likely to appoint an attorney general who would allow Mr. Smith to continue his work, much less name any new special counsel to look into him.
Instead, Mr. Trump has proved that pushing ahead relentlessly regardless of scandal, investigation and trial can work for him politically — at least so far. He is on track to win the Republican presidential nomination for a third time and has at least an even 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 a president.
“I think my biggest takeaway is how lucky we’ve been as a nation to have presidents who have mostly comported themselves with dignity, or at least respected the dignity of the office,” said Lindsay M. Chervinsky, the incoming executive director of the George Washington Presidential Library and the author of “Making the Presidency,” a book about John Adams to be published in September. “This conviction brings into stark relief how violently Trump has rejected that tradition.”
