We are still waiting for the revelation that will settle — once and for all — whether Donald Trump or his critics get it right. Is our president a liar and a scoundrel or is he the innocent and noble victim of dark and sinister forces who have bedeviled him almost from the moment he announced his candidacy for president?
We thought the Mueller Report might bridge our lamentable partisan divide, since it found no evidence of the president’s purported collusion with Russia, but, weirdly, that report was spun to suggest a lack of presidential cooperation with that probe that was somehow the criminal act of obstruction of justice. Oddly, that notion dissipated quickly, and, before we knew it, we were in the current impeachment frenzy with the president accused of using the power of his office to intimidate a foreign leader into venally serving the president’s personal political ends.
The impeachment and removal effort, nakedly political as it is, is doomed to failure. This is because the president’s exercise of diplomatic relations is protected by the Constitution itself, and as even the great liberal criminal law scholar Alan Dershowitz has made clear, it cannot possibly amount to a high crime or misdemeanor. Moreover, the signs are now evident (from the fact that 50 Republican Senators have condemned the secretive and one-sided proceedings now underway in the House), that a Republican-controlled Senate will never vote by a two-third’s majority to remove Mr. Trump.
His removal is even more unlikely following the president’s announcement that the long effort to find and remove the terrorist head of Islamic State has been accomplished.
It is doubtful, however, that those who continue to bay for the excision of Donald Trump from the presidency, those who seek to reverse their loss in 2016, will be deterred.
Nevertheless, we are quite likely soon to witness the most important revelations that, as the president has maintained, he has been the wrongful victim of a witch hunt, of a manufactured conspiracy, of an attempt to frame and discredit him by officials of the Obama administration. This is the expected outcome of the report coming soon from the DOJ’s inspector general, Michael Horowitz, who is likely to report that criminal acts were performed in the original surveillance of the president and his aides on fabricated evidence of Russian involvement in his campaign.
This report, coupled with the recent transformation of U.S. Attorney John Durham’s inquiry into the beginnings of that surveillance into a criminal investigation, is, according to some astute observers, likely finally to result in grand jury indictments and trials of some senior officials, and may turn out to be the greatest political scandal of our era.
Even when this happens, however, and even if many independent and objective observers become convinced that great wrongs were perpetrated against this president, his most rabid detractors are likely to be unmoved. His principal tormentors, Congressmen Adam Schiff and Jerold Nadler, with exquisite chutzpah, have already denounced Durham’s investigation and Attorney General Bill Barr’s similar efforts, as a wrongful politicization of our criminal law.
What could account for such spectacular hypocrisy or, to be a bit kinder, such obduracy on the part of the Democrats? I have sought to argue here that what is going on is an ideological battle, one where reality is colored by cultural preferences, where one sees only what one wants to see, and where, given the now clear lines drawn between conservatives and liberals on charged matters such as race, religion, abortion, gender, wealth redistribution, and regulation, political compromise seems impossible.
And yet — if it is true that partisans in the Obama administration flagrantly and wrongly twisted the law to serve their own selfish political ends, perhaps this sorry episode will offer an opportunity for the nation to make a long-overdue renewal of commitment to the rule of law and the Constitution itself.
For too long all three branches of our government have been rejecting prior precedent, and have been making up law, policy, and procedure out of whole cloth, and the same has been true in many of our administrative agencies — the bureaucracy and the “deep state,” so much lamented by Mr. Trump.
All of this has led to the arbitrary actions most feared by our framers, an alarming loss of state and local political power, and a concomitant failure of local governance, as many of our cities become increasingly unlivable.
If the revelations of wrongdoing are as dramatic as expected, they just might shock Americans into realizing that the 2020 elections ought to be about returning this country to more honest, and, perhaps, more modest federal government, and restoring the original Constitutional doctrines of federalism and separation of powers.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.
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