As its original Latin root literally suggests, a congressional subpoena demands compliance “subject to the laws’ penalties.” But the Constitution of the United States says plainly that the president “shall have the power to grant reprieves and pardons for offenses against the United States” not excepting even high treason. Failure to comply with a congressional subpoena is such an offense. So, if some individuals refuse to comply with a congressional subpoena, the president has the power to excuse them from any and all the penalties of law ordinarily attached to such refusals.
Under the U.S. Constitution, therefore, “executive privilege” is not a matter of judicial or even congressional practice and tradition. It is the plain and simple consequence of the Constitution’s words, which are transparently clear. They become even clearer as one ponders the fact that the subpoena’s power relies, for its effect, on the very penalties the president has the authority to obviate. One might argue, of course, that the pardoning power is logically inherent in executive power at the highest level. For, by definition, the highest power has no superior. So, if the chief executive declines to enforce the law against this or that person, who has the power to arrest his dereliction?
However, the framers of the U.S. Constitution accepted the premise that no merely human executive could claim to be in that supreme position of power, but only Almighty God. They therefore accepted the premise that people abused by violations of God-endowed right may appeal to His goodwill, and by means of their aggregated forces, sustain that appeal in fact, and by the grace of God, to the best of their ability. This is what Americans successfully did against the government of Great Britain’s king. Thereafter, they sought to establish a national government duly dependent on the responsible will of the American people, a republican government that would militate against the likelihood that even their well justified grievances against the government of the United States would have to be the cause for violent conflict and war.
That is the whole point of periodic elections in which the conflicting testimony of words and reasoning terminates in a decisive battle, using “ballots, not bullets.” But unlike the British constitution, which had failed them on this point, under the U.S. Constitution even the highest executive authority is subject to such elections. But even with this preliminary check against abuses of the highest executive power, sudden emergencies may arise, demanding that equally sudden accretions of power be applied in response to them. Such emergencies may, in extremis, require actions that cross the boundaries of laws, including the Constitution. Given the experience of our times, however, it’s obvious that such emergencies may be prolonged (by contrivance or purposeful dereliction) to facilitate usurpations of power by tyrannically minded individuals or parties. Communist ideologues like Saul Alinsky see this exploitation of crisis to advance dictatorship almost as an ideological duty.
If the president of the United States had to stand for election every two years, like a member of the House, this might provide a check against such abuses. But it would also aggravate the shortsighted electoral preoccupations that some already see as fatally damaging to any president’s ability to devise and sustain a coherent administration of national policy. Election campaigns are, as it were, a substitute for war. So, perpetual campaigning has effects like those of perpetual war. Add things like the now persistent threat of terrorist attack, and even people not inclined to accept Alinsky’s imperative must find themselves sorely tempted to surrender to it, just to “get things done.”
All this gives more point than ever to the maxim that “eternal vigilance by the people is the price of liberty.” Where tyrannical abuse of executive power is a persistent temptation, periodic elections may prove inadequate to inform and sustain such vigilance. As the need for it is an everyday affair, the readiness to meet that need must be equally routine. I believe it to be a token of God’s Providential goodwill toward America’s self-government that the U.S. Constitution includes provisions for the undertaking the impeachment of even the highest officials of the U.S. government. They seem exactly suited to providing the framework, and securing the motives, for such vigilance. As Hamilton wrote, “… this ought … to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded.”
Right now, this supposition haunts everything that is said or written about the possibility that Russia contrived to influence the outcome of the 2016 election. This includes the brouhaha over possible use or abuse of the shield of “executive privilege.” But where matters touch upon the possible “connivance of the Chief Magistrate” in some effort to subvert the choice of the American people, the Constitution plainly removes the pardoning pardon that is the logical ground of that “executive privilege.” It does so by singularly and explicitly excepting “cases of impeachment” from the purview of the chief executive’s pardoning power.
But cases of impeachment can only be opened, investigated and brought to a vote (or not) by members of the U.S. House of Representatives. Present talk about “executive privilege” makes sense only because the investigation of accusations against the president and/or his associates is being conducted by members of the U.S. Senate, rather than the House. This is a clear perversion of the Constitutional process for dealing with accusations of presidential malfeasance. This lack of proper constitutional authority gives the whole spectacle in the U.S. Senate an air of fakery. Is it an accident that this perversion gives the initiative to the body that is, at present, more disposed by its composition to fan the damp embers of allegation, so as to hamper President Trump’s administration with the smoke, where no actual fire seems likely to make an appearance?
What does it say about House Speaker Paul Ryan and the GOP leadership in the U.S. House, when they tolerate the Senate’s blatant usurpation of their chamber’s constitutional prerogative and duty? If they are not conniving at the anti-Trump tendencies of the U.S. Senate, why add the appearance of constitutional dereliction to the appearance of doing so? Instead they should conduct a competent, objective investigation behind a resolution that opens a case of impeachment so a bill can be fairly voted up or down, or simply judged to be unwarranted. No law instituting some special counsel, or other expedient, supersedes the Constitution’s allocation of exclusive jurisdiction. If the GOP majority takes pains to institute a framework for investigation that justly represents the permanent vigilance of the whole American people, their actions will remove any excuse but factional fury for continuing to agitate charges that must remain specious, pending the investigation’s outcome.
The GOP’s confidence in the outcome would thus appear to be as secure as their confidence in the president’s clear and emphatic rejection of the charges. But in addition to showing their confidence in the president’s word, their pursuit of their constitutional duty would demonstrate their determination to let no partisan motives supersede the oath of office that requires them to give higher priority to the words of the U.S. Constitution.
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