Trump's claim of 'absolute right' is constitutionally wrong

Criterion for when 'the president may breach the law'

By Alan Keyes

Like most people inexperienced in the conduct of governmental affairs, President Donald Trump has not yet developed the frame of mind required to govern his use of words so that his statements take account of the complex responsibilities of his office. In the midst of controversy about allegedly sensitive intelligence information he shared with Russia's ambassador, he tweeted:

As President I wanted to share with Russia [,] which I have the absolute right to do, facts pertaining to terrorism and airline flight safety."

As president of the United States, Mr. Trump may certainly take actions he deems absolutely necessary to fulfill the duties of his office. But one of his duties is to see to it that the laws are faithfully executed. One aspect of that has to be the example he sets for the members of the Executive branch. In the ordinary course of things, he should demand (in his orders, but also by his example) respect for all laws made pursuant to the U.S. Constitution. They are components of the Supreme Law of the Land, which he is sworn to uphold.

In exceptional cases, having to do mainly with existential threats to the Constitution and people of the United States (what we call "matters of national security"), he may, of necessity, have to supersede the law in order to preserve it. The exercise of this prerogative (a word that, at its root, alludes literally to actions taken before there is any opportunity to question them) may sometimes be absolutely necessary. But, under our system of constitutional government, it is obviously not an "absolute right," since the Constitution constrains and limits it.

If the president breaches those constitutional bounds, he may be called to account for doing so. The Constitution vests in Congress the power to question any and all actions taken by the president that appear to violate the Supreme Law of the Land. This is a critical power, precisely because such breaches may arise in connection with the prerogatives of his high office. Abuse of those prerogatives is, among other things, precisely encompassed within the meaning of the term "high crimes" – i.e., crimes that reflect the fact that his position involves prerogatives that may supersede (in effect be placed above) the law. For abusing these prerogatives, the president may be indicted by majority vote of the House, tried by the U.S. Senate, and removed from office if two-thirds of the senators conclude that his actions warrant it.

President Trump thus erred in using the term "absolute right," which conveys the sense of being answerable to no one but himself alone. The president is no absolute monarch. Like the dictators of ancient Rome, he may, on occasion, be called upon to take the law into his own hands. But if and when he does, he is still answerable to the people of the United States, in and through the bodies the Constitution establishes to represent their sovereign responsibility for its existence. Thus, the president may breach the law, but even though he judges it absolutely necessary, and therefore right, to do so, he may still be called upon to prove that judgment to the satisfaction of Congress. His rights as president are therefore never "absolute."

Whether by temperament, or simply because he has not acquired the habit of doing so, President Trump apparently has no mental governor to sound the alarm when formulations contrary to his constitutional responsibilities come to mind, or are proposed by others for his approval. He is not the first president to suffer from this deficiency. But in the past, the temper of the times gave rise to habits of speech and thought that helped to check the defect. Not so in our day. We live in times when every premise of constitutional self-government – of, by, and for the people – is being challenged, seriously neglected, or discarded outright.

Socialism and pragmatism are the dominant ideologies among our elites. Both discard the constitutional temperament, and the cautionary habits of mind, self-government requires. Both focus on material results, without giving priority to the premises of God-endowed justice and unalienable right that ought to discipline the means used to achieve results, even if that discipline can, sometimes, only be applied after the fact.

To be true to our premises of justice and liberty, American statesmanship requires a predisposition that mingles bold activism with an innate capacity for deliberate, and even reflective, thought. In this respect, our greatest crises have called for leadership that roughly corresponds to Plato's impossible dream about "philosopher kings."

Heretofore, however, the United States benefited from the leavening of the faith that reveres God and acknowledges the authority of His Word of Creation – "through which all things were made, and without which was nothing made that was made." That Word gives rise to hope, hope that appeared in fleshly human form to affirm that "With man this is impossible, but with God all things are possible" (Matthew 19:26).

The pride of power – born of riches and reflexively reliant on material might – may be disposed to reject the constraints of right and justice constitutional government requires. But if, even in secret, the counsel of God is taken, so that He may reform the unruly temperament that otherwise refuses to seek the wisdom He alone can give, then what is absolutely impossible for a man may yet become possible by the power of God. For in the presence of God and Jesus Christ, the most hopeful thing about a man may be God's power to change him for the better. In this hope, let us pray.

© Alan Keyes