Based on a recent New York Times report, President TrumpDonald TrumpMcAuliffe takes tougher stance on Democrats in Washington Democrats troll Trump over Virginia governor's race Tom Glavine, Ric Flair, Doug Flutie to join Trump for Herschel Walker event MORE's legal team admonished special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE for floating the possibility of obstruction of justice. In their words:
“It remains our position that the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction..."
In fact, it couldn't be further from the truth. Many have criticized the president’s attorneys for making the claim but, as a practicing attorney, I do not. Their job is to advance arguments that exonerate their client in our adversarial judicial system.
The president has a higher duty to faithfully enforce the laws, but only a man capable of putting country over self-interest would perform that duty. We will see if he can. If not, then we must look to Congress to exercise proper checks and balances, protecting the rule of law.
Our Founding Fathers knew that power corrupted mortal man. Indeed, the American Revolution was a revolt against centralized power that answered to none. As James Madison wrote in Federalist 51, a federal government of limited power is “essential to the preservation of liberty,” and our system of checks and balances is designed “to control the abuses of government.” That is why the legislative branch — Congress — was made dominant, as it is more answerable to the American people, and, by definition, its power is more diffused among many persons.
Congress' duty is to check the president’s power. Just because President Trump is in office, do congressional Republicans now believe that our Founders intended the executive branch to wield unfettered power over an independent investigation into foreign powers influencing him or his campaign? The very structure of our government suggests not.
The onus is now on Republicans to respect our Founders' wishes and allow justice to run its course — wherever it may end up. The principles of limited government, strengthened by institutional checks and balances, cut to the core of what conservatism is supposed to advance. However, for at least the last century, Democrats and Republicans have drifted away from these principles. Consider the use of presidential executive orders: More executive orders have been issued in the past 50 years than in the first 112 years after the ratification of the Constitution.
Though he was far from a traditional Republican, many conservatives supported President Trump because they longed for a return to limited government and an executive branch held in check. Indeed, "Drain the Swamp" became a direct assault on a Washington, D.C., that has consolidated inordinate power in recent decades.
Pro-Trump conservatives chaffed at the imperialism of President Obama's rule-making by fiat. From the Paris climate agreement to the Iran deal and Deferred Action for Childhood Arrivals (DACA), Obama critics rightly grew wary of the White House bypassing elected legislators. Similarly, conservatives opposed the rise of a judicial branch as a legislative authority. Most notably on social issues, conservatives rejected the idea of nine unelected Supreme Court judges changing our legal and social norms.
Yet many pro-Trump conservatives now cheer the president's executive orders and assertion of unchecked power over the judicial process — as an alternative to our traditional legislative and judicial processes. Are conservatives now to become unprincipled hypocrites and advocate for overweening presidential power just because that is what President Trump might want? Can our president do no wrong?
Many have wisely found the precedent for presidential obstruction of justice in the articles of impeachment against President Nixon and then President Clinton. I go to the beginning — our founding. In "Common Sense", Thomas Paine wrote: “For as in absolute governments the King is law, so in free countries, the law ought to be King.” Our Declaration of Independence, in citing evidence of King George’s “absolute tyranny," referenced his failure to “Assent to Laws” and obstruction of the “Administration of Justice.”
Did the Founders fight a war, risking death, to be free from tyranny, only to vest President Trump — or any other president — with unlimited power?
Whether the threat before us is an executive order or the recurring attacks on the Mueller investigation, conservatives must hold true to their principles, not political expediency. If we are to protect the rule of law, true conservatives must rise up now and say so.
Rick Hall is an attorney and a legal advisor to Republicans for the Rule of Law, a 501c4 fighting to protect Special Counsel Robert Mueller’s investigation from political interference.