Writing under the pseudonym Publicola in support of the new Constitution, the North Carolina attorney and legislator Archibald Maclaine rebuffed critics who charged that the president was little more than a king.
“It is a maxim in the British government that the king can do no wrong; that is, he is not amenable to the courts of justice, as the law has not provided any punishment for his misconduct.” But, Maclaine wrote, “the president of the United States will be liable to be impeached by the representatives of the people, and to be tried for his crimes.”
Even more emphatic, on this point, was the Federalist writer Americanus. Should the president “at any time be impelled by ambition, or blinded by passion, and boldly attempt to pass the bounds prescribed to his power, he is liable to be impeached and removed from office; and afterwards he is subject to indictment, trial, judgment and punishment according to the law.”
For all the power the president held, supporters of the Constitution in each of the 13 states argued, he was still bound by law. And his job, fundamentally, was to faithfully execute the laws. He was not subordinate to Congress, but he wasn’t its master, either.
When it comes to the actual operation of government, however, practice matters more than theory. It was George Washington’s service as the nation’s first president that, as much as anything else, structured the relationship between the two branches. Washington imbued the office with his stature. He commanded respect and so, too, would the presidency, even when held by men without his bearing or accomplishments. And as the United States democratized and the office became something like a vessel for the national mood, individual presidents also took on the respect accorded the popular will in a democratic society.
All the while, the office was bounded by law. When presidents exceeded their given authority, they worked to justify their actions in terms of law, whether ordinary statutes or the higher law of the Constitution. “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” Abraham Lincoln asked when confronted over his use of war powers in the opening months of the slaveholders’ rebellion. His point was that however much he exceeded his authority, he did so in defense of the Constitution, in accordance with his oath.
Donald Trump is not the first president to break the law. He is not the first president to disregard the law. He is not even the first president to insist that his actions cannot, on some deep ontological level, be illegal. But he may be the first president to abandon the pretense that the law matters at all.
The canonical example of presidential lawbreaking, Watergate, was a cover-up because Richard Nixon believed himself obligated to give lip service to the law. He hid his actions from the public out of fealty to the idea that he was bound by law, even if he didn’t agree. His hypocrisy, as the saying goes, was his tribute to virtue.
Trump has no use for pretense, and he’s not interested in playing along. He thinks he is a law unto himself; that he holds sovereign authority over the entire country; that he can rule by decree and punish those who resist. As one would expect, his administration has been an exercise in breaking the law, exceeding its bounds and violating its spirit. His lawyers may dutifully argue that their client is acting within his lawful authority, but the character of his actions betrays contempt for the law itself.
His basic approach, in fact, is to ignore or break the law and hope that the Republican-appointed majority on the Supreme Court will use his lawbreaking to advance its pet ideological projects. Chief Justice John Roberts, to use just one example, is preoccupied with the expansion of executive power at the expense of Congress. And it seems that in his view, an erratic, lawless president is a small price to pay for summoning the unitary executive into existence.
One important result of this interplay was the Supreme Court’s 2024 ruling in Trump v. United States, which shielded presidents from criminal prosecution as long as their actions related to core duties and official acts. As you might imagine, a clever teenager could find the many ways this might apply to virtually anything, legal or illegal, the president wants to do. Under this standard, even Watergate may well have been perfectly cromulent.
Trump has let it be known that he is considering a set of blanket pardons for subordinates in his administration. We don’t know for certain the extent of the lawbreaking in the Trump administration, but we know it’s there. If they win Congress next week, Democrats will investigate and perhaps, in the future, issue criminal referrals. Blanket pardons would preclude federal criminal accountability for anyone who broke the law at Trump’s behest. Worse, they would give subordinates an incentive to continue breaking the law — or enabling the president’s lawless behavior — secure in the knowledge that they, too, will walk away unscathed.
It has never been outside the realm of possibility that a president would order his officers to engage in illegal behavior and then issue pardons to shield them and himself. George Mason warned of it at Virginia’s ratification convention. “Now, I conceive that the president ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself,” Mason said. “It may happen at some future day that he will establish a monarchy and destroy the Republic. If he has the power of granting pardons before indictment or conviction, may he not stop inquiry and prevent detection?”
Similar observations were made by skeptics of the Constitution at Maryland’s ratifying convention, as attested to by Luther Martin of Maryland, a leading anti-Federalist who had left the Philadelphia convention in protest. “It was said that no treason was so likely to take place as that in which the president himself might be engaged — the attempt to assume to himself powers not given by the Constitution, and establish himself in regal authority — in which attempt a provision is made for him to secure from punishment the creatures of his ambition, the associates and abettors of his treasonable practices, by granting them pardons should they be defeated in their attempts to subvert the Constitution.”
If this loaded gun hasn’t been fired, a major reason is that most presidents understood themselves to be stewards of a democratic republic. This kind of lawless pardon has never really been on the table, as egotistic and power-hungry as many of them have been.
It matters a great deal then that Trump does not see himself as a steward of a democracy. The country, to him, is little more than a large and lucrative piece of real estate. And his obligations appear to extend only as far as his pecuniary interests. His ideological obsession with whitening the United States can be seen in terms of his fundamentally aesthetic preoccupations. What else is mass deportation than the effort of a lifelong landlord to remove the people he thinks degrade the value of the property?
Which is just to say that of course Trump would be the first president to contemplate blanket pardons for his subordinates. The only real surprise is that he hasn’t done it already.
It is worth placing all of this in relation to the Supreme Court’s efforts to shield the president from the law. To grant the president criminal immunity on top of his plenary power to pardon is, in effect, to extend the zone of lawlessness to the entire executive branch. The part of government meant to execute and enforce the law is now — or is at least potentially — free from it altogether.
There is a word for a system where the chief executive is outside the law and can use the force of the state against his enemies without any real obstacle, a word that was very much on the minds of the framers of the Constitution: tyranny.
As dire as this is, the opposition is not without options. There are things Democrats can do to begin to deal with the crisis of a lawless president and administration. They can create a civil cause of action against executive branch officers, allowing victims of abuse to sue federal officials in court for damages. You may not be able to hold a Stephen Miller criminally accountable, but you could drain his bank account, knowing full well that Trump will not come to the rescue.
A more ambitious move would be to introduce a constitutional amendment limiting the scope of the pardon power. This would not work retroactively, but it would restrain future presidents.
Even in the absence of an amendment, Democrats should begin to think creatively about Trump’s pardons and potential pardons, from those issued to the Jan. 6 rioters to the corrupt pardons given to those with the president’s ear and a little cash to spend.
Here, it is useful to think about the Constitution not just as a collection of clauses, but as a holistic document written to establish republican government under the rule of law. The text of the document may state an unlimited pardon power, but to judge that text against the ethos of the document is to see a more nuanced picture. A Constitution that would allow the president to break the law and then pardon the perpetrators is one that becomes the author of its own demise. And because we know the Constitution was not written to facilitate its own destruction, we should treat that outcome as absurd.
If, having investigated the administration, Democrats find evidence of criminal behavior — and if they find that a pardon was issued to preclude criminal prosecution — Democrats should treat those pardons as null, void and illegitimate on their face in light of what the Constitution implies about the limits of the pardon power — and of president power itself.
We may well be less than a week away from a Democratic sweep of Congress. There are prominent voices within the larger Democratic coalition who think it is counterproductive, even foolish, to pivot to hearings, investigations and political accountability. In their telling, most Americans are tired of the noise. The only thing they want from Congress is good government.
I want good government, too. But good government, now or in the future, is impossible without accountability. To set that aside is to condemn the United States to another national exercise in corruption and authoritarian rule. And I would hazard that after nearly two years of abject lawlessness — including summary killings by agents of the state — there are many tens of millions of Americans who also want to hold the administration and its allies responsible for their actions.
Our nation’s experiment in executive aggrandizement has gone too far. If accountability means anything, it must mean binding both the president and the presidency with law. It is the essential task of the next Democratic majority, and the next Democratic presidency for that matter, to begin the reconstruction of American democracy with the rule of law in mind.
That Trump is something like the apotheosis of the dysfunction of the American system does not mean that he is the end of the story. He may well be the beginning of something much worse. Our job is to make him a blip in the history of American democracy and not the opening act of its demise.
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