Trump’s Effort to Take Back the Constitution and Self-Government

One of the oldest and greatest guides to understanding American politics is captured in the sage advice: “follow the money.” As America is the richest nation on the globe, there is a lot to be followed. The federal leviathan is awash in trillions of dollars in cash. Countless lawyers, lobbyists, and public officials, by their control of or access to our government, have grown rich. Hillary and Bill Clinton notoriously are Exhibit A, but we are in the process of learning that the current front-runner in the Democratic sweepstakes for the 2020 nomination, Joe Biden, also managed successfully to siphon off a few million for himself and his family.

One way of understanding the still unbelievable hostility for Donald Trump is that he had made his fortune before entering government, and because he owes nothing to the denizens of the deep state and the swamp, they cannot control him. Thus the incessant attempts by the Democrats, and their allies in the federal bureaucracy and the mainstream media to neutralize this threat to their hegemony.

The Russia collusion hoax—which we now know was the product of a cabal in the Obama Administration in cooperation with the Clinton campaign—distracted much of the nation for two years, caused endless disturbance in the White House, wasted millions in the costs of the Mueller investigation, ruined many reputations, and quite possibly discouraged many Americans (especially during the 2018 elections) from supporting an administration innocent of the calumnies spun against it.

The spinning of calumnies continues apace, however, as the prize of control of the federal government is once again up for grabs in 2020. The Russia collusion hoax having failed, an immediate pivot toward the notion that the loathed Trump somehow “obstructed justice” in the course of special counsel Mueller’s investigation—an obstruction that many Democrats now argue should result in the impeachment and removal of the President—is now underway.

Attorney General Bill Barr has properly exploded the argument for obstruction of justice. The principal props of the obstruction argument have now collapsed. These were (a) that the President fired Director of the FBI James Comey because he refused publicly to acknowledge what he had communicated privately—that the President himself was not under investigation and that (b) Trump had communicated to subordinates his wish that Mueller be terminated for conflict of interest (Mueller had been an unsuccessful candidate to resume his old post as Director of the FBI, and was a close friend of the terminated Comey). These two arguments evaporate when one understands that it cannot be obstruction of justice when a president simply exercises the tasks of appointment and termination that Article II of the Constitution entrusts to him.

Obstruction is a crime that depends on a criminal motive, and where one has no such criminal intent, one is not guilty of the crime. Carrying out one’s Constitutional duties to take care that the laws be faithfully executed, which is what the president sought to do in the face of rampant efforts to perpetrate a hoax and injustice, cannot be made the stuff of impeachment unless the meaning of the Constitution has been so compromised and perverted that we have lost our allegiance to the rule of law itself.

This is probably the meaning of the outburst from Attorney General Bill Barr, when he was being grilled by Democrat Senator Richard Blumenthal, during his appearance before the Senate Judiciary Committee, to explain his correct view that the president had not committed obstruction of justice. “[W]e have to stop using the criminal justice process as a political weapon,” Barr lamented. This was a clear recognition that the Mueller investigation itself was precisely the wrongdoing Barr had in mind.

This is a symptom of a broader problem in American life, which is the difficulty of making fine distinctions between politics and law generally. The temptations of those in power to preserve that power, to make it difficult for challengers to unseat them, are almost irresistible, as we have seen over the past few decades as federal laws and regulations have multiplied, and as incumbency protection has been an unacknowledged principle of much of that legislation and regulation.

The current president is the greatest threat to the federal leviathan in at least a generation, and his program of scaling back the Code of Federal Regulation, and returning power to state and local governments by appointing judges and Justices who understand the actual meaning of the Constitution, is anathema to the Democrats and their allies who live, parasitically, on the largesse of our national behemoth.

What really excites some of us supporters of this president is that he may be our last, best chance to recapture the Constitution, and with it our right to govern ourselves. The administrative state—our permanent federal bureaucracy—and the elite class who manage, run, and profit by it, have been our real rulers for several decades.

That class is terrified by this president and has managed, through such nonsense and chicanery as the Russia hoax and its attendant obstruction of justice replacement, to continue wrongfully casting aspersions on Donald Trump. The absurdity of the obstruction argument—a thinly veiled political tactic—has been exposed even by such loyal Democrats as former Harvard Professor Alan Dershowitz. It will evaporate, if it has not already, but it will be replaced by other such dubious undertakings as the attempt to make public the tax returns of the president, and other private financial matters regarding his businesses and those of his family, before he entered the White House.

When that fails, other such distractions can be expected. Fortunately, this president, even given occasional bluster and bloviation (now a necessity in our politics) has demonstrated the wherewithal to resist. He may have found a campaign theme for 2020 worthy of replacing his 2016 mantra of “Make America Great Again.” In his recent Wisconsin rally, the President reminded his supporters that in this country we worship God, not the government.

There are those in this country who clearly do worship government, however, for the achievement of their own selfish partisan ends. While salvation may not be achieved in this life, it remains true that our founders sought through our Constitution to give us the means to foster self-government, even though they understood that republican government in this country was dependent on the maintenance of virtue in the American people themselves.

In spite of all efforts to counter it, that virtue is still there. Yet there is always a cadre of self-interested politicians and demagogues who seek to conceal their nefarious activities from the people, and to obfuscate the truth. The Russia hoax was one of the most audacious such attempts in American history. Undoubtedly it involved criminal behavior and the wrongful use of our Department of Justice and our intelligence agencies. Attorney General Barr has pledged to investigate and bring implicated miscreants to justice, and the president would do well vigorously to support him in his efforts.

Another of the hoariest and yet most true political maxims is that eternal vigilance is the price of liberty. That vigilance has now exposed many of those who wrongly sought to frustrate popular sovereignty and place the Obama Administration’s favored candidate in 2016 in office. Having failed that, and, concomitantly failed to maintain and enhance the power of the administrative state, they continue in their efforts to defeat the president by other means.

The friends of liberty, the friends of limited government, and the friends of the rule of law itself ought to understand that this president, and his reelection in 2020 are our best hope for taming the federal leviathan and continuing to take back the right of the people to govern themselves.

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Photo Credit: Chip Somodevilla/Getty Images

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About Stephen B. Presser

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). In the academic year 2018-2019, Professor Presser is a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.