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The framers anticipated a controversial president like Donald Trump when they drafted the U.S. Constitution 230 years ago.
They assumed that anyone who holds power will be tempted to abuse it, and that the Federal Constitution must have safeguards – the separation of powers, a system of checks and balances and impeachment – to limit that power.
The creation of the presidency, like the development of the Constitution itself, was among other things the result of the framers’ experience with the British monarchy. Anti-monarchical sentiment was great among them because of George III’s arbitrary rule and his violation of the colonists’ rights under the English constitution. To prevent a similar danger, the framers divided constitutional powers into three separate branches of government – legislative, executive and judicial – and created a system of checks and balances between those branches.
While they also established an executive to exercise the “decisiveness, secrecy and dispatch” necessary to enforce the laws, the framers understood that a determined president inclined to abuse his power for self-interest could break through the constitutional barriers and do severe damage to the general welfare.
To prevent that danger, they instituted Article II, Section 4, the safeguard of “removal from Office on impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” During his brief tenure in office, Trump has demonstrated that he is precisely the kind of president the framers feared when they established the Constitution because he refuses to allow the rule of law to prevent him from achieving a personal agenda that conflicts with the needs and interests of the nation.
During the Federal Convention of 1787, James Madison warned of a president who “might pervert his administration into a scheme of peculation or oppression” and betray his trust to foreign powers,” with an outcome that is “fatal to the Republic.”
Trump’s constant pandering to Russian President Vladimir Putin not only suggests the strong possibility of collusion, but the kind of “betrayal of trust to a foreign power” Madison anticipated. During the 2016 presidential election, Trump repeatedly disparaged the findings of several U.S. intelligence agencies of Russian hacking “intended to interfere with the U.S. election process.” After taking office, he went on Twitter to denounce the investigation of the Russian ties to his campaign. Then he fired FBI Director James Comey in the midst of that investigation; an act perilously close to the obstruction of justice.
Trump’s actions – or inaction – in foreign policy reinforce a pro-Russian bias. While he has acted swiftly and decisively against aggression by other nations, Trump has remained conspicuously silent in the face of Russian aggression, including Russia’s deployment of a nuclear armed cruise missile capable of striking NATO allies in Europe and the buzzing of an American destroyer by a Russian aircraft in a manner described by the Pentagon as “unsafe and unprofessional.”
Until now, the president’s Russian bias appears at best like poor judgment and, at worst, a serious conflict of interest because of his repeated attempts to launch real estate ventures in Russia.
But if the investigation into his campaign reveals that he or his agents did in fact leak highly classified information from U.S. intelligence agencies in violation of federal secrecy laws, nothing will protect him from being impeached on a charge of treason. Just as the Framers intended.
Nor are Trump’s ties to Russia the only area in which he’s abused executive authority.
His executive order imposing a freeze on admitting refugees into the United States and a ban on travel from seven Muslim-majority countries was the precisely kind of action the framers feared and the Constitution forbids. Not only was the order hastily drafted, unvetted and unsupported by fact, but done without the consultation of congressional leadership or members of the pertinent committees.
The order also violated the separation of powers between the federal government and the states because it imposed an extraordinary burden on state economies and governance without justification. What’s more, the order reflected an anti-Muslim prejudice and violated constitutional guarantees of religious freedom, equal protection of the laws, or both.
The only justification for such an arbitrary order would be a time of national emergency, which was not the case. Without an emergency, Trump lacked the constitutional power to unilaterally halt the movement of those who had been following legal channels to enter the United States.
When acting Attorney General Sally Yates refused to enforce the order, Trump fired her. But he could not prevent the ruling of the several district courts as well as the Court of Appeals for the Ninth Circuit, which declared the order unconstitutional. Just as the framers intended.
The framers of the Federal Constitution were not only legal scholars and insightful students of history, but also visionaries who could anticipate the dangers that lay ahead. They insured that no president would be unaccountable to the rule of law. That is why President Trump’s fate will be decided not by his rhetoric or controversial behavior, but by the respect, or lack of, he pays to the Constitution.
Just as the Frames intended.