Somewhere in the United States, a person on parole has run afoul of the law, and is fearing the worst. Perhaps he was in a car stopped by the police, and unbeknownst to him, his friend, who owns the car and was driving, was carrying drugs. Perhaps he knowingly committed a petty crime, such as shoplifting. Whatever the origins of his predicament, he now awaits the harsh consequences tomorrow, when the criminal justice system decides his fate.
Meanwhile, Donald Trump is a free man. Without having to recount his many crimes, culminating in the incitement to insurrection, he faces no such consequences. The recently-ended Senate trial carved away all pretense of justice, down to the bare bone of privilege. He lives in a different world than the fearful person I cited in the previous paragraph. He is protected by a rabid base, conservative media outlets, elected officials…And the way we treat the Presidency as something greater than merely another federal job.
We all know the phrase “imperial presidency,” a term that Arthur Schlesinger made famous with his book of that title. The Presidency has been accumulating power over the last several decades, most noticeably during the Cold War. The expansion of the federal bureaucracy gave the President a vast apparatus to carry out policies and to anticipate the current occupant’s preferences. The razor-thin margin of nuclear deterrence encouraged the view that the President needed a wide latitude in foreign affairs, particularly to make rapid decisions during a crisis. Certainly, the abdication of Congress in actually passing legislation has further encouraged the drift of power in the direction of the White House. Various laws and rules, such as the one that protects a President from criminal indictment while in office, further widen the gap between parolee and President.
Undergirding many of these protections from consequences are our attitudes towards the Presidency. We feel the office is special…But why? Certainly part of the answer lies in the confusion between the head of state and head of government that exists in our political system, and not in others like Great Britain’s, where the division between who symbolizes the nation and who manages it is more clear. As a result of this entanglement of the dignified and efficient parts of the government, many Americans believe that a President in trouble somehow makes the country look in disarray.
Another factor is our strange inversion of interest in politics. Americans tend to know less about politics, the more local it is, to the point where many people know Mayor Pete and can’t identify the mayor of their own town. We know more about the President than anyone in our political system, and we feel most passionately during Presidential elections than any other race. That, too, makes the Presidency special, and lets other elected officials off the hook, because of their presumed unimportance.
The Cold War national security argument I cited earlier — a distracted President can’t protect us all from existential threats — is another underlying assumption. Various Justice Department policies and legal opinions are based on the principle that the President is too busy with the country’s business to be burdened by legal concerns, at least while in office. But as the second impeachment trial showed, people are still willing to make excuses for not holding a former President legally accountable, lest we all get distracted from the nation’s urgent business, or we make future Presidents look too often over their shoulders while in the Oval Office.
Trump has shown us how these assumptions are not merely nonsensical, but dangerous. For example, during his one term, he was neither busy with the concerns of his office, nor quick to respond to an existential threat, a pandemic. We saw, in operation, the opposite of the explicit bargain behind the national security argument for Presidential exceptionalism. Trump also used the protections of the office often to feverishly work to protect himself from facing legal consequences for his actions while in office. Rather than being too busy to be distracted from his stewardship of the nation, he was occupied with saving his own neck. The time spent between Election Day and January 6 in many meetings and phone calls, feverishly trying to undermine the results of the 2020 election through pressure and threats, was merely the intensification of how he spent the nation’s time and resources on avoiding consequences for himself.
Therefore, the solution is not merely to find a better occupant to enjoy the privileges of the office. We also must re-think the Presidency, to make it less imperial in both our minds and the rules that constrain it. We need to focus on other offices than the President. We need to stop treating the President as the embodiment of the nation. We need to revise the rules that allowed Trump to avoid accountability while in office. We need to dig a wider and deeper moat between the White House and the Justice Department. We need to make a lot of other specific changes about the Presidency, but they won’t start until Americans see it, not as some separate species of Constitutional office, but just another job that the Constitution and federal law prescribes and constrains.
Almost two decades ago, during the post-9/11 period, I thought the great Constitutional mistake we had been making for decades was putting declarations of war on the shelf. On the questions of greatest gravity, we were playing fast and loose with the Constitution, which weakened our fidelity to other critical parts of the Constitution beyond the war-making aspects. It certainly contributed to the loosening of Presidential constraints. Now, here we in a perverse time in which many people have spent a great deal of time making excuses why we cannot make a President accountable for everything from emoluments corruption to inciting a violent attack on our democracy, our elected officials, and the irreplaceable building where they work. This is clearly not what the Framers intended.
To build on what Dostoyevsky said, “A society should be judged not by how it treats its outstanding citizens but by how it treats its criminals,” we should shorten the distance between the lowliest criminals and the highest.
