By all appearances, the stage is being set for an attempted coup d’état against the United States by Donald Trump, William Barr and Federalist Society lawyers. If that sounds crazy, it is. Arguments made by Trump’s lawyers in two separate cases in D.C. federal courts telegraph the conspiracy points, all pulled from questionable interpretations of the U.S. Constitution.
First, let’s put a few things in context. The decidedly right-wing Federalist Society argues, in effect, that the executive branch of government has supremacy over other branches of government — that the president of the United States is literally above the law. Federalists even have a name for this: the unitary executive theory.
Federalists seem to see the role of the president of the United States as being like that of a corporate CEO — an official who can do most anything he wants till the board of directors fires him. The business corporation as we know it today didn’t exist when the Constitution was written, so there’s no evidence this was ever the intent of the Framers. At the constitutional convention in 1787, patriot Roger Sherman said that having an executive independent of the “supreme Legislature” was “the essence of tyranny if there was such a thing.”
By contrast, congressional Democrats and mainstream media pundits repeatedly argue the Constitution created three co-equal branches of government. Where does this come from? Probably from the Federalist Papers that promoted the Constitution when its ratification was still a national question, but it’s not in the Constitution itself.
In any case, I disagree with the Federalists, the Democrats and the pundits. I side with historian and former conservative Garry Wills: The Constitution makes the legislative branch supreme — “first among equals,” to borrow a phrase from the British.
The Framers gave the legislative branch a significant role in choosing presidents and judges. They gave it the sole power of oversight and removal of presidents and judges. They gave the executive and the judiciary no role in choosing, overseeing or removing members of Congress for their conduct in office.
While Article I enumerates the many powers of Congress, Article II fails to enumerate truly executive powers beyond making the president commander in chief of the military; giving him the power to request information in writing from department heads; and conferring on him the duty to take care that the laws be faithfully executed. On the other hand, Article I, Section 8, of the Constitution, otherwise known as the elastic clause, gives Congress the power to do anything not otherwise specifically prohibited by the Constitution.
Donald Trump’s lawyers have been arguing in federal court that the president of the United States is above the law — that the criminal laws that apply to everyone else in our country do not apply to him. That is an essential element of the Federalist Society’s unitary executive theory.
It’s also an argument the U.S. Supreme Court unanimously rejected in United States v. Nixon. President Nixon claimed he was not required to honor a congressional subpoena for his taped White House conversations in the midst of the Watergate scandal. But the high court disagreed, ordering him to turn over the tapes to Congress. Nixon then resigned.
Years after leaving office for that and other crimes, Nixon reiterated his failed argument in an interview with David Frost. Nixon told Frost, “(W)hen the president does it, that means it is not illegal....”
And that’s one argument Donald Trump and America’s corrupt and dishonest attorney general, William Barr, now make. (Barr is also using this argument to exonerate Trump of crimes, deny Congress a copy of the unredacted Mueller Report and defy a subpoena to appear before the House Judiciary Committee.)
In Trump v. Committee on Oversight and Reform, Trump and his lawyers have taken the unitary executive argument to new extremes. They argue that Congress has no legitimate constitutional authority to investigate or oversee any president for anything, thus negating the subpoenaing of financial records from Trump’s accounting firm, Mazars USA. They are thus expanding Nixon’s losing argument that the president is above the law.
U.S. District Judge Amit Mehta pinned down Trump’s lead attorney William Consovoy on this question: The judge asked if Consovoy was arguing that the Watergate and Whitewater investigations were thus unconstitutional. Consovoy declined to answer. Why? I believe Consovoy plans to make the unitary executive argument before the U.S. Supreme Court — that he plans to ask the nation’s highest court to facilitate a coup d’état that would effectively make America a dictatorship under Trump.
Two days later, U.S. District Judge Edgardo Ramos rejected similar efforts by Trump lawyers to prevent yet another congressional subpoena demanding financial records from Trump’s banks — Deutsche Bank, which has information pertaining to the financing of Trump family businesses, and Capital One, which has Trump’s personal bank records. Ramos ruled “the power of Congress to conduct investigations is inherent in the legislative process.”
The Supreme Court will probably again reject the Federalist Society’s unitary executive theory that the president is above the law. But with a court majority of certified Federalist Society judges, this is no guarantee. The hope is that Chief Justice John Roberts, still deeply concerned about the high court’s role in history, will join the four Democratic-appointed judges to reject the unitary executive theory once more.
But here’s the bottom line: Donald Trump and William Barr are now leading the most massive assault on democracy, the Constitution and the rule of law in American history. They are leading what is probably the greatest cover-up and conspiracy to obstruct justice in the history of the world.
Will this Trump/Barr/Federalist attempted coup d’état succeed? The question of whether we elevate presidents above all constitutional accountability is now left to our federal judiciary.