Presidents' Day

I write on the Monday holiday we Americans commemorate two of our most famous presidents, coinciding this year with the one month anniversary of our most recent chief executive's inauguration. While time alone will tell whether Donald Trump will be regarded in the same vein as George Washington and Abraham Lincoln, the first weeks of this new administration have certainly proved exceptional by any measure. This blog is intended for legal commentary, not political discourse. My last post veered somewhat into politics, written a week after the November election to express guarded, reluctant hopes for the incipient Trump administration. Now that the reality has quickened into real life, I will again hew the legal line and focus on constitutional themes alone.

Our republic, which governs the mightiest nation state on earth, is more remarkable in its structure and intent for the restraints placed upon power than the liberties granted to it. The chief executive is bound by rules which limit arbitrary and ill-considered actions, or those reflecting personal motivations more than public ends. This year the public has learned much about ordinarily obscure provisions of the Constitution, such as the Emoluments Clause, and limiting legislation like the Logan Act, seldom attracting attention at any point in most administrations. A president and his subordinates must obey these and more well-known restrictions upon power, both during the term of office and in the run-up to it. It is not legal, and hardly acceptable, for agents of the president-elect to entertain back channel communications with intelligence and military operatives of foreign powers--particularly hostile ones who have been detected interfering in our elections. If the president is a prominent, powerful business tycoon, not later than taking the oath of office, one immediate responsibility is to choose public service over private profit whenever the two ends collide.

More well-known to most students who have taken a civics course, we have separation of powers among co-equal branches of government and a free press. Whenever the president acts via executive order, often in areas of strong political disagreement, the courts may well conclude some or all of such actions violate the law or the Constitution. That is the function of a free, independent judiciary. The president's cabinet and judicial nominees face confirmation hearings before, and all proposed legislation emerges from, a legislative branch composed of hundreds of bright minds and strong personalities, with loyalties spanning the political spectrum. This president or any may choose to cry foul at the courts, or inveigh against congressional critics via the social media bully pulpit available in the twenty-first century. Whether through a megaphone or across the twitterverse, however, shrill protests against the other branches acting as checks and balances is as effective as howling in a hurricane that the wind should simply stop.

A free, robust press may be the most important, unofficial organ of a functioning republic. Some reporters and media outlets may well betray bias, and allow opinion to leak from the editorial pages to places where it doesn't belong. But the institution of the media itself is not a sham, and objectively measurable, falsifiable facts are not subject to a list of alternative interpretations. Most of us know this intuitively as a matter of common sense. None of us should have to remind anyone in a position of tremendous power and privilege of the most basic fundamental realities.

Our first president, George Washington, assumed office after a successful war of liberation from foreign tyranny, and himself forswore the mantle of king or indefinite terms in office. We lionize him as truthteller in chief. Abraham Lincoln preserved the union Washington had helped achieve, and extended freedom to millions previously in bondage. Similarly, we laud him as "Honest Abe". Both these real human beings were imperfect and flawed; we view them today through a generous prism of heroic history. Yet it cannot be denied that Washington and Lincoln were each great, in his own way and for his time. A month into the job, Donald Trump has the chance to create his own legacy, which will be measured against predecessors such as these. The fact that no human being is perfect, and that all power corrupts, confirms the genius of our Constitution, in limiting and confining the abilities of even those who command the most powerful forces in history. Of that, we can all be proud this Presidents' Day.