With the Senate’s acquittal of Donald Trump on Wednesday, the presidency has reached the apex of its modern, peacetime power. Both parties—in impeachments spaced less than a generation apart—have demonstrated that partisan loyalty outweighs any independent duty to check presidential lawlessness or abuses of power. Presidents now have but one binding obligation—to win. Today’s French Press:
The greater the power of the president, the more we need him to be good.
A necessary reminder that individual liberty can be a unifying force.
As Congress steps back, character steps up as a necessary presidential constraint.
So long as the American economy holds, what are the precise constraints on presidential misconduct? We know that the Department of Justice won’t indict a president for crimes while still in office. That’s been the announced policy of the DoJ for decades. Presently, the Trump administration is fighting hard to immunize the president also from state investigative processes.
We also know that the president won’t be removed even if there is overwhelming evidence that he commits an actual felony in office. The Democrats established that precedent in their defense of Bill Clinton.
We now know that the president won’t be removed even if he distorts American diplomacy in a strategically vital region of the world in service of a personal, vindictive vendetta against a political opponent (and to pursue a truly bizarre conspiracy theory).
We also know that the people are turning a blind eye to presidential misdeeds. Fear and hatred of the other side trumps any concern for truth and dignity on their own. The president has permission to do as he wills, so long as he wins.
Sure, the president’s partisan defenders will promise they were principled. But we know the truth. We know that if you switched the parties but kept all the facts the same, we’d have seen essentially the same outcome. There would be a few members of Congress who’d remain true to their convictions, but only a few. Every single angry Republican taking to Fox to furiously defend Trump would be impeaching a Democratic president under identical facts. Many of the Democrats who impeached Trump worked mightily to keep Bill Clinton in the Oval Office.
It’s cynical. It’s shameful. And it magnifies the power of the president immensely, far beyond the Founders’ intent.
As we survey the American political landscape, it’s become increasingly clear that both parties love their living Constitution. Structural originalism is dead. Congress is no longer the supreme branch of the government. It’s supine before the presidency. The federal courts are no longer the “least dangerous branch.” The president’s hand-picked judges often dominate American politics.
The president is now the true colossus astride the American political scene. He commands an immense federal bureaucracy that—in direct defiance of America’s founding principles—makes more law than Congress. He wields the awesome power of the world’s greatest military, and he’s long ago determined that the constitutional imperative that Congress declare war before that power is deployed is but a suggestion, something that might sometimes be politically wise but is never constitutionally necessary.
The president makes the law. He executes the law. He chooses the people who interpret the law. It’s good to be king.
But then we need the king to be good. If no one is going to require him to put the national interest over his personal interest in international diplomacy, we need him to choose the right course. If no one is going to require him to tell the truth under oath, then we need him to possess a modicum of integrity and decency. If Congress won’t command him to seek its approval before waging war, then we need the president to set a positive precedent.
And now even the electoral safeguard against presidential abuse is fraying. There is not much demand for public virtue. Talk to a Trump base voter, and you’ll hear unrelenting scorn for Mitt Romney—the only senator in American history brave enough to vote to convict a president from his own party and one of the most decent men in American politics. His sin? He lost. He’s a loser. In fact, Trump tweeted a video mocking Romney for his defeat.
Never mind that Barack Obama would have nuked Donald Trump from orbit if he ever faced Trump in an election. Never mind that Romney’s record includes winning a governor’s race, winning a Senate race, and saving an Olympics. It was Donald Trump who wiped the smiles off those smug faces on CNN. Trump is our champion now.
Why did Democrats adore Bill Clinton so much? After all, if you talked to the average Democrat in the weeks and months after the Clarence Thomas confirmation hearings and told them that in a few short years they’d be circling their wagons around a man who lied under oath in a sexual harassment case and who faced a strongly corroborated rape claim, they’d say, “Surely not. We respect women.”
But Bill Clinton was a winner. He ended the 12-year Reagan/Bush dynasty. He humiliated Newt Gingrich. And so even after his impeachment —even after his shameless perjury and pitiful lies to the American public —in the 2000 Democratic National Convention, he executed a WWE-style stage-walk and basked in the roar of the crowd.
The lesson here is clear. Just win, baby. Just win, and we’ll love you. We’ll defend you. And as we do, we’ll enrage our fellow citizens with our merry hypocrisy. Until it is their turn to rule, and then we’ll wonder why they won’t uphold the principles we so gleefully discarded.
With all due apologies to Friedrich Nietzsche, good is dead, and we have killed it. We will come to regret the world we’ve made.
Respecting civil liberties can bind us together.
If you follow at all the conservative civil wars over liberalism, “Frenchism” (I still can’t believe that was ever a thing), and the challenges of American culture, you’ll recall that one of the central critiques of classical liberalism was its emphasis on individualism. An emphasis on individual liberty was perceived as atomizing. What we really need is for the government to advance and enforce public policy aimed at building social solidarity and community.
I took the opposite view—a proper respect for individual liberty is unifying. In a diverse, pluralistic community, public policies aiming at creating social solidarity are often inherently divisive, in large part because in the absence of organic and “natural” solidarity, a government becomes a blunt instrument wielded against disfavored minorities, the alleged enemies of unity..
Individual liberty can build social solidarity in at least two key ways—through understanding and action. First, it’s vital to understand that our rights are interlocking and dependent. The right to free speech or right to free exercise of religion cannot exist just for me and not for thee or they are not “rights” at all. They’re mere exercises of power. Thus, when a political opponent wins a court victory vindicating individual liberty, I win as well. When he loses, I lose.
And that brings us to the unifying action —a legal corollary to the Golden Rule. Since their victory is also our victory, we should fight for the rights of others that we would like to exercise ourselves. I know from personal experience that this simple action can create meaningful bonds of friendship and fellowship across the widest of ideological and even religious boundaries.
Given these realities, I wanted to further highlight a legal case I wrote about on The Dispatch website yesterday. An Arizona federal judge applied a statute that many on the left hate—the Religious Freedom Restoration Act (RFRA)—to keep four progressive activists out of prison:
Using RFRA, [the court] overturned the convictions of four people affiliated with the Unitarian Universalist Church who were prosecuted for “violations of the regulations governing the Cabeza Prieta Wildlife Refuge.” The defendants were convicted after entering the refuge without the necessary permits and “leaving supplies of food and water in an area of desert wilderness where people frequently die of dehydration and exposure.” They were trying to save the lives of illegal immigrants who were making their way across “one of the most extreme environments in North America.”
If you haven’t read the piece yet, please read the whole thing. As the title of the piece indicates, religious liberty isn’t just for social conservatives. It never was. And the sooner we can stop evaluating fundamental liberties on the basis of “who benefits from this case” rather than understanding that we’re protecting the cultural and creedal fabric of our nation by vindicating individual rights, then the sooner we can start to turn down the ideological temperature of American constitutional debate.
One last thing …
Some of my valued readers may be under the impression that I talk about Ja Morant and the Memphis Grizzlies too much. Au contraire! I’m pretty sure I talk about them too little. And what persuaded me of this fact? Well, the good folks at The Ringer love Ja so much that they made a music video about him. Clearly, my efforts are inadequate. Watch and enjoy:
Photograph of Donald Trump by Mark Wilson/Getty Images.