A CALL TO PROTECT THE CONSTITUTIONAL ORDER

By Professor David Rudenstine

President Donald J. Trump presents a substantial and immediate threat to the future of the American constitutional order. His words and his conduct as a candidate and as President dangerously assault essential constitutional premises.

All citizens, no matter how they voted in the 2016 presidential election, should acknowledge that grave risks to the nation's governing principles are at hand. But acknowledgment is only the first step and by itself is insufficient. All citizens must assume responsibility to assure that vital checks and balances central to structuring the national government are maintained, that the rule of law is sustained and strengthened, and that the nation's highest aspirations for individual liberty, equality, and dignity are forcefully fortified.

Although it has been many generations since the nation's political order has been as threatened as it is today, President Trump's shattering conduct brings to mind the familiar eighteenth century anecdote concerning Benjamin Franklin. At the close of the Constitutional Convention of 1787, Franklin was asked as he left Independence Hall: “Well Doctor what have we got, a republic or a monarchy.”  Franklin replied, “A republic . . . if you can keep it.” Today it is incumbent upon all Americans to do what each can to preserve and protect the republic.

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President Trump won the presidential election, and now that the Republican Party controls the Senate and the House of Representatives, he is in a position to bring about important change through the legislative process. Americans seriously disagree about these changes and are seriously engaged in strenuously promoting their differing perspectives within the framework of the constitutional order.

As important as those policy differences are, what is more worrisome are the fierce and frequent attacks mounted by President Trump and others in his administration on the pillars of the constitutional order. It is not any one or two of the different lines of attack on the constitutional underpinnings that are troubling. Rather it is the frequency and intensity of these assaults that are alarming. The constitutional order is resilient, but it is not immune to irreparable harm.

What follows are examples of President Trump and his administration’s assaults on our constitutional order.

·The President and others in his administration have attacked the legitimacy of the press. Indeed, President Trump has tweeted that the national press is the "enemy of the American People." A society committed to democratic values cannot effectively function without an informed public which in turn requires that the public trust in the reported news. Frequent false charges by the President and others on the traditional sources of news in the United States are dangerous attacks on the democratic fabric of American society.

·The President and others in his administration have attacked the legitimacy of the federal judiciary. Just days ago in what is referred to as the travel ban case, President Trump referred to one federal judge as a “so-called” judge after he enjoined the travel ban. He and others in his administration do not simply disagree with judicial opinions, and then appeal disagreeable rulings, as is the right of the new administration. Instead this administration seeks to intimidate the judiciary and to undermine the public’s confidence in the judiciary. A society committed to democracy must be committed to the rule of law, and the rule of law requires an independent judiciary whose rulings the public respects.

·The President lies repeatedly and his lies undermine the Office of the Presidency and thus the United States.

·President Trump has maintained without a scintilla of evidence that he won the presidential popular vote because he asserts 3 to 5 million fraudulent votes were cast for Hillary Clinton. This claim undermines the entire democratic system by asserting that election outcomes as announced by appropriate election authorities cannot be trusted. Challenging the legitimacy of election outcomes puts at risk the peaceful transfer of political authority. Indeed, Donald Trump did that explicitly before millions of American voters when he refused to state in the last presidential debate with Hillary Clinton that he would accept the outcome of the election.

•As a candidate for the presidency, Donald Trump made statements expressing intolerant and discriminatory attitudes based on race, religion and national origin, and accepted the support of individuals and organizations that promote an agenda of hate, discrimination and bigotry. As President, Mr. Trump has sought to translate these intolerant attitudes into policy by, for example, imposing a travel ban on immigrants, building a wall along the southern United States border, and adopting policies that put at risk thousands upon thousands of individuals who have led law abiding lives in the United States for many years. The President's words and conducts diminish the United States in the eyes of the world, betray the spirit and the letter of American law, and sow the seeds of discord and discrimination across the nation.

·The President made it a signature campaign issue that he would “lock up” Hillary Clinton if he won the election. The threat of locking up political opponents who are defeated in an election surely may intimidate some individuals from running for office, and thus eats away at the future vigor of our political system. And yet President Trump made this threat over and over during his campaign. Moreover, in making this threat, candidate Trump seem not to care one whit that his statements or those of his allies about “locking up” Hillary Clinton compromised her right to a fair trial if criminal charges were ever filed against her.

· By not disclosing his tax returns or divesting himself of his holdings, and by permitting his family to maintain diverse and substantial holdings about which he plainly has substantial knowledge, President Trump has destroyed the ability of the nation to trust that he will discharge his duties as president to further the best interest of the nation’s people as opposed to exercising the vast power of his office to enrich himself or his family. Apart from betraying this trust, President Trump seems almost certainly in violation of the Emolument clause of the constitution. That clause protects the public from the president having a conflict of interest by providing that the President, unless the congress so consents, shall not “accept of any present, Emolument, Office, or Title, of any kind whatsoever, from any King, Prince, or foreign State.” These critical fiscal considerations tear at the assumption that the nation’s highest elected official acts to advance the general welfare of the nation.

·During the 2016 campaign for the presidency, Donald Trump requested that Russians hack the emails of Hillary Clinton and her associates and then disclose those emails to the American public. That scandalous conduct has been followed by numerous news reports that claim that some of Mr. Trump’s close associates – including Michael Flynn who resigned as the National Security Adviser within a month of his appointment -- had direct or indirect contact with Russian representatives both before and after the November election about a variety of matters including the difficulties in Ukraine. There have been further reports that Mr. Trump’s financial holdings are entangled with Russian creditors and investors who in turn may have close ties to Mr. Putin, and that these entanglements make President Trump susceptible to exceptional and inappropriate Russian pressure while he is president. Against this background, Mr. Trump’s repeatedly expressed admiration for Mr. Putin and his frequent urging that the United States aim to have friendlier relations with Russia give rise to troubling suspicions that Mr. Trump is inappropriately beholden to Mr. Putin and his associates such that he will sacrifice the best interest of the United States. Although there are more claims than definitive evidence involved in these entangled allegations, they constitute a threat to the legitimacy of the 2016 election outcome and raise urgent questions as to the ability of President Trump to discharge his presidential duties free of undue pressure or leverage by Mr. Putin and his Russian associates. As a result, these allegations require an independent and special prosecutor free of compromising political oversight to investigate them.

President Trump’s dangerous assault on the pillars of the constitutional order is unrelated to any legitimate legislative agenda he may have for the nation. In fact, the assault has and will likely continue to absorb the nation’s attention to some significant extent, thus ironically impeding the furtherance of President Trump’s legislative agenda. Unfortunately, because President Trump seems determined to pursue his attack on the premises of the governing structure, citizens have no choice but to resist the assault in an effort to protect and preserve the constitutional order.

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There is no one way to preserve and protect the constitutional order. Citizens may pose tough questions to their representatives at town hall meetings, call Washington congressional offices to ask questions or to pass along opinions, write letters to newspapers, participate in street protests, organize public panels and small gatherings of friends and neighbors to discuss what can be done, or run for political office. Teachers may study the constitution with their students. Students may organize teach-ins. Lawyers may bring law suits, file amicus briefs with courts, and commence Freedom of Information Requests to secure information the government wishes to keep secret.

America’s political way of life is at stake, and the time to act to protect and preserve it is now.  So, let’s all join hands and insist that the voice of the people not only be loud and heard, but that it be honored.

To help in this worthy endeavor, endorse this Call to Protect the Constitutional Order and pass it on to your friends, your neighbors, and your colleagues. And then take appropriate action.