Is Donald Trump Above the Law?

When Donald Trump asserted on June 4 that he had “the absolute right” to pardon himself for any crime, he might as well have said: “I am above the law.”

This attitude by the nation’s top executive should offend every single citizen. Nothing is more fundamental to the Nation’s founding and purpose than the idea that no one person can twist or subvert the law for his or her own purposes.

This is the most recent and blatant violation of the public trust by Donald Trump. Surely, it is time for cities and towns across the land to come to the aid of their Country, to defend the Constitution, and call upon Congress to begin impeachment proceedings.

Is Donald Trump above the law?  Until Congress takes unequivocal action to demonstrate otherwise, the answer is Yes.

Heedless of the National Interest


                Trump’s decision on February 2, 2018 to allow the release of the faulty House Intelligence Committee memo critical of the F.B.I., over the objections of both that agency and the Justice Department, was a clear violation of the public trust.  Like his firing of James Comey, followed by his attempts to fire Robert Mueller as well, this action demonstrates that Trump considers himself above the law, and is willing to denigrate and subvert government institutions in order to save his own skin. 
                    His decision the following week to block the release of the Democratic rebuttal of that memo, after the House Intelligence Committee voted unanimously to release it also, only adds hypocrisy to his carelessness.

                   These are polical crimes, injuries to society itself, the very sort of things impeachment exists to remedy.  Republicans especially should be alarmed and offended by the actions of Donald Trump.  Whether it will be impeachment and conviction that removes him from office, or implementation of the 25thAmendment instead, the moment has arrived for citizens to commit to the task. 

                Given the current Republican control of Congress, we will not likely see impeachment before 2019.  We should make it the foremost issue of the 2018 election.  America, let alone the world, cannot afford four years of this menace.

             This is the fourth entry on this site.  The first, titled “In Violation of the Public Trust”, discusses the purpose of impeachment and the sort of conduct the framers of our Constitution had in mind.  The second, titled “If Not Bush, Why Trump?”, argues that although George Bush’s military interventions were disastrous and clear injuries to society, the remedy would have put someone more dangerous in office, Dick Cheney.  The third entry, “Loose Cannon on Deck”, addresses Trump’s reckless approach to North Korea, and the nature of nuclear deterrence.

                While the most recent provocation, the release of the Republican memo critical of the F.B.I., was in the works, the New York Times reported that Trump was not satisfied with the advice of his military leaders that any military attack on North Korea could escalate to unacceptable consequences, and he was insisting on more military options.  This sort of behavior is impeachable as well.

                To these two categories, his assault on law and order and his recklessness in foreign policy, we could add his unabashed racism with respect to immigration policy. Given the Nation’s torturous history of racism and the colossal human toll, Donald Trump’s remarks about people from Haiti and African countries, not to mention his earlier characterizations of Mexican nationals, demonstrates that he is unfit morally to serve as president. 

                What about his attacks on women, and the manner in which he dismisses the many allegations against him of sexual misconduct?  In time Americans may come to see these as equal to any of his other transgressions, but these are matters citizens at large do not now have the information to resolve.  Similarly, his singling out of Muslims for suspicion, his mimicking of a physically disabled reporter, his refusal to release his tax returns, among other things, are below the office of President, but may not be impeachable in and of themselves.  

                Suffice it to say Donald Trump is heedless of the national interest, considers himself above the law, and would compromise the hard-fought vision of racial equality.  The time has surely come for citizens to insist on  his removal from office, by whichever constitutional remedy can acheive that end.    

Loose Cannon on Deck

By Todd Buchanan


On October 1, 2017, one day after his Secretary of State, Rex Tillerson, said he was attempting to start a dialogue with North Korea’s Kim Jong-un, Trump called the effort a waste of time. “Save your energy Rex, we’ll do what needs to be done,” Trump said.

Senator Bob Corker (R-Tenn.), chairman of the Senate Foreign Relations Committee, responded in support of Tillerson’s efforts. “I think Tillerson understands that every intelligence agency we have says there’s no amount of economic pressure you can put on North Korea to get them to stop this program because they view it as their survival,” Corker said.

Nuclear weapons are chiefly defensive in application, especially for a nominal nuclear power which cannot credibly threaten a successful first strike against another nuclear power better endowed. As we noted in “Violations of the Public Trust” below, it is not necessary that a regime be a champion of freedom and democracy in order to be deterred from initiating nuclear war. All that is necessary for any regime to be deterred is the prospect of its power and privileges being destroyed in retaliation for first use.

Nuclear weapons seem to impose a logic of their own, no matter what the character of the leadership of any country possessing them.

Even though the United States would retain overwhelming superiority of military forces, North Korea can credibly threaten a devastating attack on South Korea in retaliation for first-use by the United States. But the prospect of a single nuclear weapon and its delivery system surviving a first strike by the United States, and North Korea successfully delivering it to anywhere in the United States, would be an added deterrent against a U.S. attack.

In between the extravagant rhetoric which Kim Jong-un has traded with Donald Trump, North Korea has made clear that the only nations that need fear its nuclear capability are any that would join in a U.S. attack. This is nuclear deterrence, clear and simple. North Korea might be more emboldened with a survivable nuclear capability, but there is no reason to believe it would contemplate an unprovoked attack with its nuclear weapons. As much as we would like to avoid an emboldened North Korea in any form, the regime considers nuclear weapons to be critical to its survival, as Senator Corker said, and is determined to keep them.

Can Donald Trump accept this reality? In time he would have to, but what might he do in the meantime?

This we cannot say. But we can say that he has needlessly aggravated this situation and seems to enjoy doing so. In addition to his general disregard for tact and other virtues of good governance, Donald Trump is reckless with the national security. With the Mueller investigation steadily closing in on him, will Trump be inclined to “bring it on” with North Korea in a desperate attempt to shield himself from Congressional action to remove him from office?

I would not put it past him.

If Not Bush, Why Trump?

By Todd Buchanan

Some people who acknowledge that impeachment was never intended to be limited to behavior which would constitute a crime per se nevertheless worry that impeachment for anything less might put us on a slippery slope. It could establish a dangerous precedent.

In response, first it is important to consider that a president, by virtue of the power inherent in the office, can do great harm to society and its individual members short of committing a crime. A recent example might be the Iraq War. Though one might argue that the war was not legal by international standards, for the sake of argument let us assume international law did not apply, and the decision to initiate that war and the prosecution of it did not violate any United States statutes.

Let us also assume that our leaders did not intentionally mislead us as to the purposes of the war, chiefly, to rid Iraq of weapons of mass destruction.

Thus far, the costs of that war and its repercussions in blood and treasure– for all sides– have been horrendous. A very reasonable case can be made that it was out of the initial chaos and the exclusive and often vengeful policies of the freshly empowered Iraqi Shiites that enough embittered Sunnis could support the emergence of first Al Qaeda in Iraq and then ISIS. The Obama administration may have dropped the ball afterward, though we cannot know that an earlier and more forceful response to ISIS would have produced the intended result; too much goes wrong in war to say with much confidence what any alternative course would have produced. Similarly, we cannot know now what the outcomes of a more aggressive response to ISIS will produce.

Even if the Bush administration did not intentionally mislead the American people and others as to the purposes of the Iraq War, it was not difficult before the war to anticipate the outcomes. If there was a winner, it was Iran. In addition, thousands upon thousands of young Muslims were and continue to be energized by the narratives of extremists, which is no surprise to anyone who bothered to read the statements of Osama bin Laden and others of his persuasion beforehand.

Thus, the decision to go to war in Iraq in 2003 was clearly reckless, as many veterans of international politics and members of previous administrations warned at the time. Surely a reckless war would qualify as a serious violation of the public trust, and there would be deterrent value in impeaching and removing the commander in chief. So why was President George W. Bush not impeached?

The obvious answer is there was not the political will in Congress to go down that road.  But one did not have to think very far to realize that the cure, removing Bush and replacing him with then Vice President Dick Cheney, would be worse than the ailment, as Cheney was instrumental in pushing his boss into the fateful decision. Then we would have been in the business of impeaching Cheney as well. An alternative might have been to impeach and remove only Cheney, which would have been a more precise application of the remedy and less disruptive of government.

As in standard law enforcement and justice, the fact that many crimes go undetected or unprosecuted is not a very good reason to fail to prosecute suspected criminals in general. Thus, the question of whether or not to impeach Donald Trump should be addressed on its merits, regardless of whether or not the American people should have consistently applied the same remedy for other violations of the public trust by previous administrations.

Americans should ask themselves a few questions. First, can we trust Donald Trump to execute his duties with the interests of the Nation uppermost? Second, can we trust him to successfully navigate what might prove to be the trickiest nuclear confrontation since the Cuban Missile Crisis? And third, does Donald Trump do justice to American values, or does he do violence to them?

What are our minimal expectations of a president, and does Donald Trump meet those?

In Violation of the Public Trust

By Todd Buchanan


Donald Trump clearly lacks the decency and discretion most Americans expect of a president. His divisive mindset seems to override any notion of the public interest, or what is takes to govern. At his August 22 rally in Phoenix, he declared: “If we have to close down our government, we’re building that wall.”

Trump’s continuation in office does not bode well for either the Republican Party or the Nation, and may risk a catastrophic war with North Korea. The most competent chief of staff, were General John Kelly that, would be no substitute for a competent president.

The limits of Trump’s staff and prominent Republicans to restrain him were demonstrated on August 15, when he returned to his initial response to the tragedy in Charlottesville Virginia, asserting that all sides were to blame. This back-track from his earlier condemnation of white supremacists and neo-Nazis on August 14—two days after the event—was sure to energize such groups.

Yet, some who acknowledge Trump’s misconduct and shortcomings seem confident that corrective mechanisms in our political system can hold him in check. Meanwhile, Senator Bob Corker (R-Tenn.) has stated that if his behavior does not change “our nation is going to go through great peril” (Washington Post, August 17).

Though Donald Trump may be guilty of obstructing justice and possibly more, the Constitutional remedies for this predicament do not require that a sitting president violate any specific law. It is sufficient that he has violated the public trust and abused the power of his office, or is simply unfit to serve.

The Constitutional remedies include impeachment, under Article 2, section 4 of the Constitution, and the 25th Amendment by which either the President’s cabinet or a body Congress may provide for the purpose can decide he is not competent to continue in office. Although the latter might seem to be the quickest route to Trump’s removal, this essay will argue a case for impeachment, which is concerned with misconduct itself regardless of one’s mental state, and for which there is already some support in Congress.

Both remedies are subject to a high bar, given the current Republican control of both the House of Representatives and the Senate. But that could change with the next election in a little more than a year. Citizens who agree that Donald Trump has violated the public trust and is dangerous in office should advocate for his removal, by either means. More and more, Republicans in particular may find Donald Trump’s conduct unacceptable and threatening to their party.

Donald Trump has made wild and unsubstantiated claims, including massive voter fraud in the last election and President Obama ordering wiretapping of Trump Tower. He refuses to release his tax returns or divest of his private businesses. Compromising religious liberty, he singled out Muslim majority countries for a travel ban, with the erroneous claim that the vetting process is minimal. He discounted a unified intelligence community’s conclusion that Russia interfered in the 2016 election, and fired James Comey, the F.B.I. director, apparently in the hope of discouraging the F.B.I. investigation of Russian meddling and any possible collusion by the Trump campaign. He has needlessly insulted allies. He has been consistently slow and half-hearted in criticizing white hate groups. During the campaign he frequently disparaged women and minorities, challenged the competency of a Hispanic judge to preside over a suit against him, and mimicked a journalist with a physical disability.

Six months into his administration, in the span of one week he tweeted that transgender individuals are not welcome in the military, publicly belittled his Attorney General as weak, turned a Boy Scout address into a Trump rally, threatened to withhold infrastructure funds from the state of a senator who voted against him on healthcare legislation, and advised policemen that they can be rougher with persons they are arresting.

On April 25, Trump pardoned former Arizona sheriff Joe Arpaio, a supporter of his who was convicted of criminal contempt a month earlier for defying a court order to stop detaining people on the mere suspicion they were undocumented immigrants. House Speaker Paul Ryan called the pardon an abuse of power which sent a dangerous signal. It was then revealed that Trump had previously inquired of his attorney general and White House counsel if the case against Arpaio could simply be dropped.

Trump’s impulsive behavior has likely aggravated the crisis with North Korea, which will soon be capable of delivering a nuclear warhead to the continental United States. Some grandiose rhetoric by North Korea aside, the simplest explanation for its nuclear weapons program is to deter attack by another nuclear power, particularly the United States. With this comes greater regional influence. But it does not follow from the regime’s brutality that it would be more inclined than any other country to initiate a nuclear war that would end in its demise. The fates of Saddam Hussein of Iraq and Muammar al-Qaddafi of Libya, who did not have nuclear weapons to deter the United States, undoubtedly confirm Kim Jong-un’s belief that his regime’s survival depends on such weapons. Trump’s insistence that North Korea give them up is not realistic, and he is the last person we need to be trying to navigate this situation. Moreover, as both this crisis and Trump’s other troubles grow, he may be tempted to exploit the former as a distraction from the latter.

On to impeachment. Section 4 of Article II of the Constitution reads:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The referent of “high Crimes and Misdemeanors” is not limited to violations of statutory law, or “indictable” crimes. To quote from Alexander Hamilton in Federalist Paper #65, the subjects of impeachment are “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to society itself.”

The language, “injuries done immediately to society itself” is important and explains why impeachment would not likely have been limited to indictable crimes. Obstruction of justice aside, in Donald Trump’s wild claims and unbecoming behavior it may not be possible to locate any violation of law or injury to any specific individual or group, yet there is clearly the prospect of injury to the Nation.

In 1974, when another President had violated the public trust, impeachment expert Raoul Berger wrote that “in a succession of ‘guilty’ verdicts [the United States Senate] has tacitly ‘settled’ that impeachment lies for nonindictable offenses.” Particularly instructive for Berger was the case of district judge Halsted Ritter in 1936. Berger wrote:

Ritter was acquitted of charges under Articles I through VI, two of which (V and VI) charged income tax evasion made unlawful by statute. He was then convicted under Article VII, which charged that the consequences of his conduct was ‘to bring his court into scandal and disrepute, to the prejudice of said court and public confidence in the administration of justice” (Impeachment: the Constitutional Problems, 1974, p.59).

Berger quoted Hatton Sumners, Chairman of the House Judiciary Committee in the Ritter case:

We do not assume the responsibility…of proving that the respondent is guilty of a crime as that term is known to criminal jurisprudence. We do presume the responsibility of bringing before you a case, proven facts, the reasonable and probable consequences of which are to cause people to doubt the integrity of the respondent presiding as a judge (p. 60, emphasis added).

Reviewing a number of cases of impeachment over a few centuries by the English Parliament, in which history the Framers of the Constitution were “steeped”, Berger wrote that “’high crimes and misdemeanors’ appear to be words of art confined to impeachments, without roots in the ordinary criminal law and which, so far as I could discover, had no relation to whether an indictment would lie in the particular circumstances” (p.66).

Whether or not Donald Trump will be charged with any specific crime, we have seen and heard enough to conclude that he does not belong in the highest office of the land. Citizens should strongly urge their current Congressional representatives and all candidates running for such offices in 2018 to support impeachment proceedings against Donald Trump, or the deployment of the 25th Amendment if such can remove him from office sooner.