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America's Rickety Constitution Is Proving No Match for The Mad King Donald

Instead of restricting the growth of tyranny, the Constitution's separation of powers is enabling the coronation of our own mad king.

"If Trump can pardon anyone, including himself, and shut down any investigation, then he has a free pass to break any federal law." (Photo: AP Photo/Evan Vucci, Wikimedia Commons, holwichaikawee/iStock)

"If Trump can pardon anyone, including himself, and shut down any investigation, then he has a free pass to break any federal law." (Photo: AP Photo/Evan Vucci, Wikimedia Commons, holwichaikawee/iStock)

President Trump has officially embraced Richard Nixon's infamous view of presidential authority: "When the president does it, that means that it is not illegal." That is the clear implication of a letter Trump's lawyers sent to Special Counsel Robert Mueller, which made sweeping claims about the president's legal immunity from prosecution.

Very disturbing indeed — but it is a reflection of the basic failure of the American constitutional structure to perform as advertised. Instead of restricting the growth of tyranny, the Constitution's separation of powers is enabling the coronation of our own mad king.

So what's in Trump's letter? The document contains many sweeping legal claims, but probably the boldest is that even if Trump ordered the termination of the Mueller investigation into himself and his associates, it would be fine: "[E]ven assuming, arguendo, that the president did order the termination of an investigation … this could not constitute obstruction of justice." That fits with an earlier argument in the letter, which asserts that Trump's actions, "by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself" (l'etat, c'est moi, as the man said).

Rudy Giuliani, now one of Trump's lawyers, gave concrete form to that theory, asserting to HuffPost on Sunday that "in no case can [Trump] be subpoenaed or indicted" — not even if he straight-up murdered former FBI Director James Comey. The only restraint on Trump's behavior, Giuliani said, was impeachment. Trump himself apparently agrees, tweeting that he has the "absolute right to PARDON myself," but would not do so (at least for the moment).

The implications are potentially sweeping. If Trump can pardon anyone, including himself, and shut down any investigation, then he has a free pass to break any federal law. He could take bribes, dole out appointments to his friends, or otherwise abuse his powers of office, and then simply dissolve any investigations and pardon anyone who gets caught. And since D.C. laws are federal laws, if Congress convenes an impeachment hearing, then by this logic there is nothing stopping Trump from ordering the murder of the committee members, and then pardoning the assassins.

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Ryan Cooper

Ryan Cooper

Ryan Cooper is a national correspondent at TheWeek.com. His work has appeared in the Washington Monthly, The New Republic, and the Washington Post.

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