You can make a good argument that the President of the United States does not have enough power. The President is hemmed in by Congress, especially when it comes to appropriations and expenditures, and is always in danger of being stopped by the Judiciary. In normal circumstances, the American government seems paralyzed and unable to put one foot in front of the other. You can argue that a president who moves forward through executive orders is only trying to escape that paralysis.

You can also argue that this is a good thing. That the “checks and balances” in our system of government keeps the country from embarking on dangerous and misguided paths with unanticipated consequences. If you take this argument, a president who moves forward with executive orders is challenging the American government as established by the Constitution.

Whichever side you take, if you even take a side as a matter of governmental philosophy rather than simply following your partisan positions, you have to recognize the the extent of a President’s power is a subject of never ending debate.

Richard Nixon had his answer to this question. I remember when Nixon said (in response to a hypothetical question by David Frost as to whether a president could take action which would otherwise be illegal if he deems it in the interest of the country) “When the President does it, that means it’s not illegal”. I remember that everyone I knew was shocked at this answer which, at the time, seemed absurd and laughable.

We didn’t know that 50 years or so later another former (and perhaps future) Republican president would not only say the same thing, but have his lawyers argue the position in court. But that’s what happened yesterday, when Donald Trump’s lawyer argued to the DC Court of Appeals that, in most instances, a president (irrespective of his reasons) could even order the assassination of a political opponent and escape any legal responsibility. 

The exceptions? Only if the president had been impeached and convicted by the Senate. I don’t understand the basis for this exception, I don’t understand what it means, and I don’t understand how or when in the process an impeachment conviction would have to occur to permit the criminal indictment to move forward. I have read several articles on yesterday’s hearing – I have not found a satisfactory answer to these questions. I haven’t even found an unsatisfactory answer.

The experts all say that Trump will lose on this question, that it’s just a matter of how much time it will take, since it will probably go up to the Supreme Court. But there still are questions, aren’t there?

One obvious question is: does a President have any immunity, civil or criminal? The idea of immunity for public officials is certainly not unknown – immunity against slander or libel, for example. And the question of how much immunity police and other law enforcement officials have has, even before the death of George Floyd, been a question of much debate, as well as of quite a bit of state legislation. If a law enforcement official throws a punch at some one, there are circumstances where he is protected by full or partial immunity, and circumstances where he may be accused of criminal behavior. But the boundaries are not clear and are set by law, or by the courts. Is it the same with a president? I don’t think we know. And if we don’t know, how can a president be found guilty?

Another question is: what is in the mind of Donald Trump? You remember what he said during his first campaign. He said he could shoot someone on Fifth Avenue and not lose any votes. I assume that he assumed that he could also shoot someone on Fifth Avenue without winding up on Death Row. Does his intent matter in cases where he is accused of criminal activity? And does that intent go beyond intent to commit a particular “crime”, but intent to ignore the boundaries between what would normally be legal and illegal conduct generally?

And, I guess, Donald Trump would not himself have had to had held and fired the gun. He could say to the army, I guess, “if anyone moves, shoot”. And that brings up the question of whether or not the order was authorized. If an order is illegal, members of the army should not obey it. But if the president has immunity, does this mean that his order would necessarily be legal, or just mean that he cannot be punished for his illegal action. And if the order is for an illegal action for which the president has immunity, what is the responsibility of the members of the military?

And finally, there is a question of acts taken as a part of the president’s duties as president, and those taken outside of presidential duties. The easiest example would be perhaps killing a mailman who is thought to be having an affair with the First Lady. Could the president be accused of murder in this instance, but not be libel for murder if the victim was, say, a member of Congress who votes against the president’s proposals on a regular basis? And who would be in charge of deciding what is, or is not, within a president’s official duties.

Trump may very well become our next president. And, although we think we know how the court will rule on what is currently before it, we may be wrong (court’s often surprise), or the ruling may be limited to this case, leaving other situations ambiguous. Donald Trump has already said that, upon reelection, he is going to be a dictator on the day he again becomes president. Dictators do a lot of terrible things. Trump may want to do any number of things on Day One – and, depending on how the court decides this case, he may feel entitled to do things that we cannot even imagine.

Let me end this with an obvious reference to judicial philosophy. Even leaving politics aside, we know that the Supreme Court (where this case will end up) is beholden to the (in my mind specious) theory of constitutional originalism. The Constitution, under this philosophy, is not a living document, but one frozen in time – a document to be analyzed for the what its plain language says, and what legislative history can be gleaned from its 18th century origin. In deciding the question of presidential immunity on this basis, a court could ignore completely the practical effect of its ruling (just as it could ignore any changes in society over the past 200+ years).

Using this type of analysis, we could find ourselves living with a president who could shoot someone at random on Fifth Avenue or Pennsylvania Avenue and walk away unchallenged. And if a president could do this, he could do anything. A one day dictator could easily become a four year dictator. And a four year dictator could easily become a dictator for life.

End of story.