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Presidential Power And The Obligations Of Faithfulness

President Donald Trump during an event in the East Room of the White House on Thursday, April 18, 2019. (Pablo Martinez Monsivais/AP)
President Donald Trump during an event in the East Room of the White House on Thursday, April 18, 2019. (Pablo Martinez Monsivais/AP)

Within the first days of an introductory course on constitutional law, something becomes clear. The Article I powers of Congress are expansive and spelled out — “enumerated” — in the text. By comparison, Article II’s description of the president’s power is quite vague.

This difference affects how those who care about the Constitution should interpret the Mueller report.

In thinking about the limits and powers of the presidency, the constitutional text does not help much. Sure, the text says the president has “executive power” and is oddly specific about the particular oath the president should utter upon taking office, requiring that the president swear to “faithfully execute” the office and “protect and defend the Constitution of the United States.” But otherwise Article II is thin in delineating both powers and responsibilities.

Norms are more than “nice-to-haves.” They are crucial to ensure the long-term health of the office of the presidency, as well as democracy itself.

The president is commander in chief; the president nominates judges and other officers, and can ask for reports from executive departments; he must “from time to time” give a State of the Union; he can pardon; he “receives” ambassadors from other nations. His most important enumerated power is also his most important obligation: “he shall take care that the Laws be faithfully executed.”

Notice that one obligation is clear: faithfulness. Appearing both in the president’s oath of office and in the Take Care clause, faithfulness is fundamental but undefined.

The obligations of faithfulness have thus mostly been derived from norms, erected over time in the ebb and flow of history and in the push and pull with the other branches. These norms are evolutionary and of varying strengths. But they certainly include the insulation of criminal investigations from political pressures, a selfless dedication to the national interest separated from the financial interests of the individual in the White House and a respect for the sanctity of the electoral process.

President Donald Trump stands near a portrait of George Washington at an event in the East Room of the White House on Thursday, April 18, 2019. (Andrew Harnik/AP)
President Donald Trump stands near a portrait of George Washington at an event in the East Room of the White House on Thursday, April 18, 2019. (Andrew Harnik/AP)

These norms have constrained most presidents from firing FBI directors they dislike or pressuring justice department officials to drop investigations. These norms have ensured most presidents insulate their decisions from the appearance of financial self-interest. These norms have meant that most presidents find common ground with their political opponents in protecting the legitimacy of our elections, rather than cozying up to authoritarian foreign leaders bent on electoral sabotage.

Norms are more than “nice-to-haves.” They are crucial to ensure the long-term health of the office of the presidency, as well as democracy itself.

What the Mueller report shows is that norms are also fragile. They are extremely difficult to enforce as a legal matter. They depend on the willingness of the president to act “faithfully” by respecting them.

President Trump does not. He recklessly flaunts them. He cares not at all about the office he holds or its enduring legitimacy. Norms are subordinated to his narcissism and self-aggrandizement.

Norms depend on the willingness of the president to act “faithfully” by respecting them.

Even if we set aside the Mueller report’s abundant evidence of criminality within the Oval Office, we are left with a narrative of a pervasive, persistent and insidious attack on norms.

It is difficult to overstate the danger posed by this attack. Criminal laws patrol only the outer edges of presidential malfeasance, and — as we are witnessing in real time — imperfectly at that. In our system where presidential powers are vague and evolving, norms provide a pivotal set of constraints to presidential will. But norms enforce themselves; when they are ignored they vanish.

Trump’s alleged crimes may never reach a jury. But for his detrimental and possibly permanent effects on the constraining power of norms, the judgment of history will be harsh.

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Kent Greenfield Twitter Cognoscenti contributor
Kent Greenfield is a professor of law at Boston College Law School. A former Supreme Court law clerk, he is an expert in constitutional law and corporate law. His work has been featured in The New York Times, The Washington Post and The Atlantic.

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