Awakening the Constitutional Spirit of Liberty

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On April 4, 2019, thousands took to the streets in New York City, joining in the nationwide protest to demand the full release of Special Counsel Robert Mueller’s report.

We are not in a constitutional crisis. We are in a crisis of courage. 

Jeffrey Toobin, the chief legal analyst for CNN, argues that “our constitutional system never contemplated a President like Donald Trump” and the system “may simply be incapable of responding to this kind of challenge.” But the Constitution did contemplate a president like Donald Trump. The founders provided Congress, the courts and the American people with an array of tools to rein in an autocrat like Trump, from congressional oversight to the power of the purse, periodic elections, enlisting the courts, and ultimately impeachment. 

The real question is not whether the Constitution is up to the task; it is whether the co-equal legislative and judicial branches—and ultimately the American people—are willing to actively exercise the lawful and constitutional powers they already possess in order to smoke out the depths of Trump’s corruption in ways that he cannot undo. Do we have the stamina and courage to go toe-to-toe with this would-be despot, exposing his transgressions to the nation and securing either his impeachment and removal from office or, failing that, his defeat in 2020? 

Is the spirit of liberty alive in the hearts of the American people? 

ON MAY 21, 1944, Learned Hand, a prominent federal judge, presided over the annual “I Am an American Day” ceremony in New York City. He saw the occasion as an opportunity to “affirm a faith, a faith in a common purpose, a common conviction, a common devotion.” But Hand wondered aloud “whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts.”

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few—as we have learned to our sorrow.            

While the threats which Trump poses are not on a par with what the world faced in World War II, we are nevertheless in an existential moment, when the future of our democracy is in jeopardy. If Trump is not removed from office at the earliest opportunity by impeachment or by defeat in 2020—if he can continue to get away with his assaults on cherished democratic institutions, if he is able to appoint one or more new Supreme Court justices, if he triggers one or more international military conflicts—he could cause lasting, if not permanent, damage to the United States and the world. Seventy-five years later, Judge Hand’s call to action takes on a compelling urgency.

Hand was hardly breaking new ground. 

In 1788, even as he was defending the new Constitution, James Madison knew that trusting mere “parchment barriers” was insufficient “against the encroaching spirit of power.” The companion sentiment—that “eternal vigilance is the price of liberty”—has been attributed to both Thomas Jefferson and abolitionist Wendell Phillips. Speaking to the Massachusetts Anti-Slavery Society on January 28, 1852, Phillips warned that “[o]nly by continuing oversight can the democrat in office be prevented from hardening into a despot; only by uninterrupted agitation can a people be sufficiently awake to principle not to let liberty be smothered in material prosperity.” In 1941, poet and Librarian of Congress Archibald MacLeish warned, “[d]emocracy is never a thing done. Democracy is always something a nation must be doing.”

TO REKINDLE THE spirit of liberty, members of the House of Representatives and the Senate need to exercise the full extent of their constitutional powers. In Federalist No. 48, Madison considered it, “agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments.” He believed that in a representative republic it is best if “the executive magistracy is carefully limited; both in the extent and the duration of its power” and “executive power [is] restrained within a narrower compass.” He feared “a tyrannical concentration of all the powers of government in the same hands.” In Federalist No. 51, he wrote that it was “essential to the preservation of liberty” that each department “should have a will of its own.” 

Trump’s rampant defiance of Congress is precisely the kind of “tyrannical concentration” that Madison most feared. Fortunately, with eleven congressional investigations pending and a growing number of key court rulings, the other branches of government are beginning to confront Trump’s abuse of power. On May 20, 2019, U.S. District Judge Amit Mehta for the District of Columbia issued a seminal and comprehensive decision rejecting Trump’s attempt to quash a congressional subpoena seeking his financial records. It was the first test in the battle Trump and Congress, and Trump lost. Judge Mehta cited a 1955 Supreme Court decision that stated, “[t]here can be no doubt as to the power of Congress, by itself or through its committees, to investigate matters and conditions relating to contemplated legislation.” 

Two days later, U.S. District Judge Edgardo Ramos for the Southern District of New York denied a similar attempt by Trump, three of his children and the Trump Organization to block Deutsche Bank AG and Capital One Financial Corp from providing financial records to Congress. Judge Ramos ruled that congressional committees have “broad” power under the Constitution to issue subpoenas to further their investigations. 

Less than a week later a third federal judge dealt Trump another defeat in his ongoing battle with Congress over his attempt to fund the building of a wall on the border with Mexico. U.S. District Judge Haywood Gilliam, Jr., for the Northern District of California granted a preliminary injunction preventing the administration from redirecting funds under the National Emergency Declaration Trump had issued in February. He ruled that the idea that the president can act “without Congress” when lawmakers refuse a funding request from the administration “does not square with fundamental separation of powers principles dating back to the earliest days of our Republic.” 

These three crucial decisions represent sharp rebukes to Trump’s widespread defiance of Congress. But they will eventually reach the Supreme Court, where Trump’s appointees, Neil Gorsuch and Brett Kavanaugh, have reinforced the existing conservative majority on the Court. Unless one of them exhibits the will to follow precedent over partisanship, the fate of Congress’s authority to oversee the president will rest in the hands of Chief Justice John Roberts. 

At 64 years of age (young by Supreme Court standards), Roberts has shown signs that his commitment to the institution of the Court combined with his desire to secure his own legacy may sufficiently bolster his independence to prompt him to uphold the doctrine of separation of powers and rule against the president. In 2012, Roberts surprised conservatives by joining the Court’s four moderate and liberal justices to uphold the individual mandate in the Affordable Care Act, which Trump had made a prime target during his election campaign and presidency. Speaking for the majority on the question of deference toward acts of Congress, Roberts wrote, “[i]t is not our job to protect the people from the consequences of their political choices.” Tom Goldstein, founder of SCOTUS blog and a respected Court observer, called Robert’s vote to uphold the ACA “Item No. 1” of his legacy. “This is his signature statement that ‘I’m not a partisan, I’m here to provide a limited backstop against excesses by the Congress, and I don’t see it here.’” Three years later, Roberts doubled down, writing for a 6-3 majority (Justice Kennedy having switched sides) upholding the portion of the ACA allowing tax subsidies to pay medical insurance.

Recently, Roberts has gone beyond his judicial opinions to publicly underscore the independence of the Court. At the University of Minnesota Law School Stein Lecture in October, 2018, he told his audience that the justices “do not sit on opposite sides of the aisle. We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation.” And in November, after Trump called the judge who granted a temporary restraining order blocking his proposed asylum ban an “Obama judge,” Roberts issued his most direct rebuke: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” 

At his 2005 confirmation hearings, Roberts embraced the Framers’ appreciation of “the role of precedent in promoting evenhandedness, predictability, stability,” and “integrity in the judicial process.” Recognizing that judges should reconsider precedent only in exceptional circumstances where a decision has proved “unworkable” over time, Roberts assured the Senate that “a sound judicial philosophy” must recognize that judges work “within a system precedent shaped by other judges equally striving to live up to the judicial oath.” During his fourteen years as chief justice, the court has overturned fewer precedents than under any other chief justice. 

The recent court decisions rejecting Trump’s efforts to undermine congressional authority are all based on long-standing Supreme Court precedents. If Roberts remains true to his statements about the importance of precedent, he will affirm these recent rulings against Trump. 

His decisions at the end of the current term sent mixed messages. On June 21, Roberts wrote the majority opinion in a 5-4 decision overturning long-standing precedent, to allow plaintiffs to sue in federal court to challenge the taking of property under eminent domain without first suing in state court. Justice Elena Kagan wrote in dissent that Roberts’ opinion “smashes a hundred-plus years of legal rulings to smithereens.” But a few days later, he disappointed conservatives by joining the liberals on the Court to largely uphold long-standing precedents on the question of deferring to the expertise of administrative agencies. Then, on the last day of the term, he wrote the majority opinion, joined by the four most liberal justices, rejecting (at least temporarily) the administration’s controversial decision to add a citizenship question to the 2020 census, yet giving the administration wiggle room to come up with a new justification that may yet allow the question to be included. Then he turned around and authored the majority opinion, now joined by the four conservatives, refusing to intervene in partisan gerrymandering. Roberts seems to be pursuing a calculating path that positions himself as independent butwithout doing real damage to the core interests of the White House.

       

IN ADDITION TO THE congressional investigations of Trump, there are at least ten federal criminal investigations and eight state and local investigations pending. Building on the conviction of former Trump lawyer Michael Cohen, the U.S. Attorney for the Southern District of New York is investigating Trump and others for concealing hush money payments and inflating insurance claims. Longtime Trump political adviser Roger J. Stone, Jr. is facing a trial in Washington, D.C., for lying to Congress. Trump’s inaugural committee is the target of two separate investigations into donations and spending. There are also criminal investigations into Trump’s lawyers, fund-raisers, and lobbying firms, and a former associate of Paul Manafort.

Meanwhile, the New York attorney general has filed a civil lawsuit against Trump, Eric Trump, Donald Trump, Jr., and Ivanka Trump accusing them and the Trump Foundation of sweeping violations of campaign finance laws, self-dealing and illegal coordination with the presidential campaign. The New York attorney general has also opened an investigation into four major Trump Organization projects and is examining Trump’s participation in dubious tax schemes and outright fraud. The District of Columbia attorney general is looking into the role Trump’s three children played on the inaugural committee. And New York City is examining whether Trump and his family underpaid taxes on his father’s real estate ventures. 

What is important about these pending state and local investigations is that if they result in criminal charges against Trump, the immunity which he enjoys under Justice Department policy (which prevented Robert Mueller from charging Trump with obstruction of justice) is limited to federal prosecutions. Substantial legal authority supports the principle that there is no legal or constitutional immunity that prevents a statefrom prosecuting a sitting president. 

In a comprehensive 1999 123-page analysis, Eric M. Freedman of Hofstra Law School, rejected “the idea that the Constitution gives the President blanket immunity from criminal prosecution as inconsistent with the history, structure, and underlying philosophy of our government, at odds with precedent, and unjustified by practical considerations.” 

Freedman pointed out that after Vice President Aaron Burr killed Alexander Hamilton in a duel in 1804, he was indicted by both New York and New Jersey. Neither Burr nor President Thomas Jefferson nor 11 senators who asked the governor of New Jersey to terminate the prosecution claimed Burr was protected by any immunity. More recently, in 1984, Secretary of Labor Raymond J. Donovan was indicted by a New York state grand jury and he never claimed immunity.

There are certainly conflicting arguments on this issue. Some scholars claim that principles of federalism and the Supremacy Clause of the Constitution preclude a state from interfering with federal officers, including the president. The point is that in addition to impeachment and federal prosecution, Trump (and his family) face civil and potential criminal liability in state court, both during and after his presidency.        

BUT WHAT IF TRUMP defies court rulings, escapes criminal prosecution, persists in exceeding his powers and continues to abuse his authority? The Founders were well aware of that risk. To address it they included in the Constitution the remedy of impeachment. 

Pessimists predict that if the House votes to impeach President Trump, the Senate will not convict him. But that ignores the history of the Nixon impeachment. The turning point for Nixon came in May 1973 with the start of the televised Watergate hearings. Seventy-one percent of people polled told Gallup that they watched at least some of the hearings. Before the broadcasts, only 31 percent of Americans thought Watergate was a serious matter, not just politics. As they watched witness after witness testify to Nixon’s abuse of power, his popularity steadily dropped, and support for impeachment dramatically rose, reaching 57 percent on the eve of his resignation. 

Then, as now, removal in the Senate had been a long shot. The Democrats held a majority in the Senate in 1974, but they did not have the two-thirds required to remove a president. By holding public hearings to display the evidence of presidential wrongdoing (which today would be amplified by social media and 24-hour cable news coverage) and by living up to their constitutional duty to pursue impeachment regardless of naysayers who feared defeat in the Senate, House Democrats placed the public interest above political calculations. The tide turned against Nixon, as leading Republicans realized he was doomed and called for his resignation. With the Republican majority in the Senate today, conviction is more of a long shot, but it is not out of the question. On recent foreign policy issues, from Saudi arms sales to the president’s war powers, increasing numbers of Senate Republicans have shown a willingness to challenge Trump. 

Nancy Pelosi and her colleagues—Democrats and Republicans—need to hold public hearings, pass an impeachment resolution, and send articles of impeachment to the Senate. If Mitch McConnell and his Republican colleagues cowardly fail to fulfill their constitutional duty, they risk paying a heavy price in 2020.  

In fact, Republican support for impeachment is building. Republican Congressman-turned-independent Justin Amash of Michigan, elected in 2010 as a Tea Party ally, has called for the opening of an impeachment inquiry. On April 23, J.W. Verret, deputy director of economic policy for the Trump transition team and an associate professor of law at George Mason University’s Antonin Scalia Law School, announced his support for impeachment. On May 29, William Cohen, a former Republican member of Congress who voted to impeach Nixon when he served on the House Judiciary Committee, urged that “Congress should not turn away from the central issue of whether Trump has, in word and deed, engaged in conduct that is fundamentally inconsistent with, and antithetical to, the highest office in the land.”

A new organization, Republicans for the Rule of Law, was formed in March 2018, as “a coalition of Republicans who believe law enforcement investigations should be completed without political interference, the laws apply equally to everyone, and the Constitution needs to be followed.” Referring to the Nixon impeachment, the group’s website declares that “nearly 50 years ago, when a Republican president was facing allegations of obstruction of justice, members of his own party came forward to uphold the Constitution and the Rule of Law. It’s time to go back to Republican standards.” 

The group has released a well-produced five-minute video featuring three former Republican federal prosecutors, Jeffrey Harris, Paul Rosenzweig, and Donald Ayer, who served respectively in the Ronald Reagan, George W. Bush, and George H. W. Bush administrations, detailing acts by Trump which they consider obstruction of justice. The three joined more than 1,000 other prosecutors who worked in Republican and Democratic administrations, all of whom signed a public statement declaring that Trump’s conduct would have resulted in multiple felony charges for obstruction of justice if he were not a sitting president. 

The American people, educated and stirred by the impeachment hearings, are poised to remove Trump and his Senate enablers. Impeachment would begin the process of restoring our democracy, and Pelosi and her party will be remembered for upholding the vision of the Founders.  

WHEN IT CAME TIME to write the Constitution in May 1787 and create the office of the president, Virginia delegate Edmund Randolph feared “the foetus of monarchy” and that the new government would “end in Tyranny.” North Carolina delegate Hugh Williamson warned against “an elective king” and Charles Pinckney of South Carolina worried that the executive might become “a Monarchy, of the worst kind, to wit an elective one.” Madison called it “indispensable that some provision should be made for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate,” who “might pervert his administration into a scheme of peculation or oppression” or “might betray his trust to foreign powers.”

The Founders provided for impeachment for “Treason, Bribery, or other high Crimes and Misdemeanors.” In Federalist No. 65, Alexander Hamilton explained that impeachment involves “the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” (Hamilton’s own full caps.) Madison agreed that “if the President be connected in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; [and] they can remove him if found guilty.” Of particular contemporary importance, Randolph linked impeachment to the Constitution’s emoluments clause, which prohibits federal officials, including the president, from receiving gifts and emoluments from foreign governments.

Calls for impeachment received encouragement from a rarely heard but very important voice. On May 29, Special Counsel Robert Mueller broke his 22-month silence to make his first public statement on the investigation that has come to bear his name. After briefly summarizing his report, which he emphasized was an independent “criminal” investigation, he stated it was important “to preserve evidence while memories are fresh and documents available.” He then pointedly observed that “the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.” The name for that process, which Mueller explicitly used in his report, is impeachment.         

DURING DARK PERIODS in our history other presidents, demagogues, white supremacists and nativist movements sought to undermine American ideals. Yet in those moments the people organized and protested against repressive policies and measures that denied the promises of our democracy.           

In the spirit of those earlier movements of resistance, today many influential leaders and visionary activists are promoting resistance to Trump to prevent the further erosion of American values and to help restore our democracy through protest marches, civil disobedience, strikes, petition drives, grassroots organizing, interfaith prayer vigils, electoral politics, lobbying, and get-out-the-vote campaigns.    

Dr. King, echoing the words that abolitionist Theodore Parker spoke in 1853, said that the “arc of the moral universe is long, but it bends toward justice.” But it doesn’t bend by itself. It needs “benders” to put their shoulder to the wheel and push. It’s not enough for the spirit of liberty to merely remain alive in the hearts of the people. The spirit must be kindled and nurtured so it flows through the arteries and into the limbs, strengthening the muscles, and empowering individuals, in the words of Rabbi Abraham Joshua Heschel, to pray with our feet.

Trump’s unabashed behavior has been so bizarre, so chaotic, so lawless, so greedy, so corrupt, so much at odds with what is expected from the holder of the highest office in the land, that he has created a new normal, inducing a numbness, a weary acceptance, inuring much of the public, the press, and both political parties to what in any other leader would by now have prompted wholesale condemnation and bipartisan calls for his immediate resignation or impeachment and removal from office. 

Yet an awakened Congress and a judiciary dedicated to upholding the Constitution, combined with a vibrant resistance movement, all with the spirit of liberty alive in their hearts, are poised to defend our democracy and to oust Trump from office by impeachment or defeat in the 2020 election. Indeed, if the resistance rises up and the stars align, Trump will be removed from office and a strengthened Democratic party will secure control of both the House and the Senate. If there is any consolation for the distress of having lived through the Trump years, it is that we have experienced first-hand the evils of an administration motivated by white nationalism, bigotry, and a disdain for the institutions of our democracy. A new government will have the opportunity not only to stem the erosion of democracy but to implement a bold progressive agenda that fulfills Judge Hand’s vision of liberty: Freedom from oppression, freedom from want, freedom to be ourselves.

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