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Year One: Stress Testing the Constitution

Brendan McDermid/Reuters
A man at an anti-Donald Trump protest outside the Plaza Hotel, New York City, December 11, 2015

The outlandish hypothetical is in every law professor’s bag of tricks. Can a former president sue a sitting president for defamation? Can a sitting president be sued for inciting a riot while a candidate? These might once have been abstract academic questions, but no more.

Professors expose students to a set of improbable facts meant to test their legal skills, and show them the limits of the law. Hypotheticals always figure large when we discuss what the Constitution says about the President. That’s because some constitutional questions have only rarely appeared in real life, and others never have. What’s more, a president usually feels bound not just by law but by the restraints of convention, and by what the Supreme Court said in a 1982 case was a “traditional concern for his historical stature.”

Any doubts that Donald Trump would challenge the usual ways we think about the presidency and the Constitution were dispelled well before November 2016. Even before he was president, Trump took aim at judges he dislikes—usually ones who have gone against his self-interest or, once in office, ruled against his administration’s policies. Trump’s ridicule embodied a refusal to recognize the role of the judiciary as a check on the executive branch. Nor, as we learned quickly, would Trump follow conventional norms of disentangling himself from his private business dealings once he entered the White House. As president, Trump turned over management of the Trump Organization to his adult sons, but retained his financial interests. That arrangement led to concerns that anyone seeking influence over the president would choose to stay at a Trump property or do business with a Trump Organization business. Perhaps to no one’s surprise, The Washington Post reported that the Trump International Hotel in Washington has recorded “a hefty profit” since Trump took office.

Such apparent conflicts have led to several lawsuits claiming that the president is violating the Emoluments Clauses: two provisions of the Constitution that bar the president from profiting from his position. The Foreign Emoluments Clause prohibits a “Person holding any Office of Profit or Trust” in the federal government from receiving an emolument—a profit or gain—without Congress’s consent. The Domestic Emoluments Clause bars the president specifically from accepting profits or gains beyond his fixed salary from the states or the federal government. These clauses are so obscure that they rarely merit discussion in an introductory constitutional law class. The Supreme Court has had nothing to say about them, and these clauses have provoked no real controversy—until now.

Trump’s lawyers deny that the president’s continued receipt of business from foreign, federal, and state governments violates the Constitution. They may be right. And it may be difficult to persuade a court that anyone has standing—the appropriate injury—that would permit a lawsuit in the first place. But while profiting from the presidency may not violate the Constitution’s Emoluments Clauses, refusing to follow routine conflict of interest practices shows a contempt for norms. We might quibble about what counts as an emolument, but we should raise questions about a president unconcerned about mixing private profit and public duty.

That defiance of norms is on full display with Trump’s use of the pardon power. The Constitution grants the president the virtually unfettered ability to grant pardons and commutations. A president needs no prior approval in granting a pardon, neither from the courts nor from Congress. Past presidents have used their pardon power often, and some say not often enough. (For instance, Barack Obama granted clemency to 1,927 people during his presidency, while George W. Bush did so only for 200; the discrepancy is due in part to the very large number of requests Obama received.) Some presidents, in the waning days of their terms, have issued controversial pardons. We’ve even seen the pardon of a former president (Richard Nixon) by a present one (Gerald Ford).

But Trump’s decision to pardon Joe Arpaio, a sheriff convicted for ignoring a federal judge’s order, grates against a seemingly uncontroversial norm: the rule of law. In 2011, a judge ordered the former Arizona sheriff to stop targeting Latinos in what amounted to systematic immigration sweeps. Arpaio ignored the order, and another federal judge found him guilty of criminal contempt as a result. Judge Susan Bolton found that the evidence in Arpaio’s case showed “a flagrant disregard” for the order to stop racial profiling. The Constitution grants Trump the power to wipe out Arpaio’s conviction. But unlike the thousands of pardons past presidents have granted, the Arpaio pardon was singularly brazen: the use of presidential power to block the enforcement of a court order.

Arpaio’s pardon was Trump’s first, but likely not his last. Those future pardons will almost certainly provoke concern, too. Can a president pardon others to stop a criminal investigation? Special Counsel Robert Mueller’s investigation has already resulted in charges against two Trump campaign officials and a guilty plea for another. Some lawmakers have said such pardons might cross a line, and supply the basis for Trump’s impeachment. Mueller’s investigation shows no sign of ending soon, and may lead directly to the president. Could Trump preemptively pardon himself? Nothing in the Constitution explicitly bars a presidential self-pardon; but no president has ever taken that step. A president’s authority to pardon himself was once a class hypothetical; it has now assumed the form of a real-life possibility.

And then there is the endless tweeting. Trump has used his account to criticize the former FBI Director James Comey, and to denigrate his own attorney general. The president’s tweets have targeted elected officials including Senator Bob Corker, Senator Mitch McConnell, and Mayor Carmen Yulin Cruz of San Juan, Puerto Rico. Trump even coined the epithet of “Little Rocket Man” for Kim Jong-un, the North Korean leader. President Trump’s tweeting exemplifies the difficulty that our constitutional norms face. The North Korean foreign minister declared that Trump’s Rocket Man tweet amounted to a declaration of war. (It isn’t: under Article I of the Constitution, only Congress has the power to declare war.) And while the Supreme Court’s interpretation of the First Amendment generally prevents the government from choosing some speakers over others, the system wasn’t designed for Twitter. Trump’s @realDonaldTrump account is his megaphone. Is he allowed to block anyone from following him?

Those tweets have been counterproductive to the president, too. Several court opinions have now referred to or quoted Trump’s tweets as evidence of his administration’s intentions behind policies like the travel bans and the military transgender ban. Trump’s tweet-call for the death penalty for Sayfullo Saipov, charged with the deadly vehicle-ramming attack in New York City on Halloween, will almost certainly make the prosecution’s case more difficult. 

Taking all this into account, how well has the founders’ design held up since Election Day? The Framers created a structure whose “great outlines” have endured to this day. The specifications for Trump’s border wall come to mind. According to the Customs and Border Protection request for proposals, the wall must withstand a significant attack by a “sledgehammer, car jack, pick axe, chisel,” or other tool intended to breach it. Trump attacks the press as fake, judges as illegitimate, NFL protests as unpatriotic, and the criminal justice system as a “joke.” Our constitutional democracy is undergoing its own stress test. We will find out soon enough if the Constitution, like Trump’s wall, can withstand such sustained assault.


This essay is part of a series reflecting on the first year since Donald Trump’s election as president.