What do we do when the president of the United States is unwilling to acknowledge any rules-bound limits of any sort on his conduct — while openly declaring that no mechanism of accountability of any kind is legitimate?
That’s the situation we find ourselves in, after President Trump’s latest eruption at the impeachment inquiry that is now gaining momentum against him. Trump tweeted this:
As I learn more and more each day, I am coming to the conclusion that what is taking place is not an impeachment, it is a COUP, intended to take away the Power of the People, their VOTE, their Freedoms, their Second Amendment, Religion, Military, Border Wall, and their God-given rights as a Citizen of The United States of America!
Trump’s claim — that this impeachment inquiry is inherently illegitimate — is increasingly becoming the official position of the administration.
But if the inquiry is illegitimate, then the sum total of Trump’s stated positions can lead to only one conclusion: There is no legitimate existing mechanism of accountability against Trump. Let’s review:
Trump can shut down any lawful investigation of himself, for any reason. Trump’s lawyers flatly declared in a memo to special counsel Robert S. Mueller III that as the “nation’s chief law enforcement officer,” the president cannot commit obstruction of justice by definition, because that “would amount to obstructing himself.” Even on a passing whim, he can legitimately “terminate the inquiry.”
Trump himself has stated this. “I had the right to end the whole Witch Hunt if I wanted,” he tweeted. Law enforcement, c’est moi.
Of course, Trump did try to fire Mueller, unsuccessfully ordering his White House counsel to do so and then directing him to cover that up, and tried to limit the investigation in numerous other ways. Trump’s position is that all this is perfectly legitimate, because he is president.
Trump cannot be criminally investigated. Trump did end up tolerating the Mueller probe, but only after failing in his repeated attempts to shut it down and drastically curtail it, which, again, he viewed as correct courses of action.
Since then, Trump’s lawyers have taken the position in court that a state-level effort to get Trump’s tax returns is illegitimate, because presidents cannot be targets of criminal investigations, due to the burden it imposes on them, a stance legal experts dismiss as absurd.
Trump, of course, has refused to release the returns, defying a half century of precedent, precisely because it might enable a process of accountability for his extensive corruption on other fronts, such as accepting payments from foreign officials and governments.
Trump cannot be prosecuted (or even be guilty of anything). The special counsel, of course, declined to prosecute Trump for multiple acts of obstruction, including ones Mueller determined were undertaken with corrupt intent, due to regulations against indicting sitting presidents.
Mueller did not exonerate, either, but crucially, Trump has repeatedly hailed this as total exoneration. Beneath this dissembling bluster is an actual claim of sorts: Because as president Trump could not be prosecuted for acts that he otherwise would have been prosecuted for in just about any other circumstances, he cannot have been guilty of them.
Trump cannot be legitimately impeached. The special counsel suggested that Congress — i.e., impeachment — was the only mechanism of accountability left. House Democrats have launched a full impeachment inquiry, due to Trump’s corrupt pressure on a foreign leader to interfere in the next U.S. election on his behalf.
Trump is now dismissing this as a “COUP,” while calling for Rep. Adam Schiff (D-Calif.) to be jailed for treason for leading that inquiry. The only upshot of this can be that the people’s very last resort against a corrupt and dangerous president — who happens to be Trump himself — is itself illegitimate.
The framers gave the power of impeachment to the House because its members are the people’s most direct representatives. As one ratifier of the Constitution put it, “this power is lodged in those who represent the great body of the people, because the occasion for its exercise will arise from acts of great injury to the community.”
In short, House members have the power to impeach precisely because they can exercise it most legitimately. Trump is turning this principle on its head.
Nothing Trump does constitutes misconduct. Trump will not allow for the existence of any rules-bound or law-bound limits on his conduct. Trump has blithely conceded he brought up Joe Biden on his call with the Ukrainian president, while also saying there was nothing wrong with this, because he was merely trying to make U.S. military aid contingent on rooting out “corruption.”
In other words, Trump is explicitly saying he can legitimately pressure a foreign leader — who is desperately awaiting that aid — to work against his political opponent, simply by falsifying that opponent’s conduct and then calling it “corruption.”
Trump has unlimited power to declare any profoundly corrupt act on his part legitimate. In this hermetically sealed rhetorical universe, any agreement on reasonable and legitimate limits on Trump’s misconduct is simply impossible.
Which brings us to the final point …
Trump can legitimately and brazenly cheat to prevent his removal in an election. The subject matter of the impeachment inquiry itself casts the entire election into doubt. As Will Wilkinson puts it: “Trump’s brazen attempt to cheat his way into a second term stands so scandalously exposed that there can be no assurance of a fair election if he’s allowed to stay in office.”
I’d go even further: Trump is declaring for himself the power to engage in bottomless corruption to prevent a legitimate election from removing him, while also declaring that any effort to impeach him for those corrupt acts is inherently illegitimate.
What’s more, we already know Trump will likely declare any election that he loses illegitimate. In the run-up to 2016, Trump repeatedly declared that the outcome would not be legitimate unless he won. Trump is again reviving his false claims of rampant voter fraud — a preview of how he’ll delegitimize an electoral loss.
To sum up: Trump can close down investigations into himself for any reason whatsoever. Trump can’t be legitimately investigated or legitimately prosecuted. Trump can do no wrong in trying to rig the election in his favor, and he can’t legitimately lose it. And Trump can’t be legitimately impeached.
So where does that leave us?