The language emanating from Trump's lawyers sounds more appropriate to 17th Century France
June 05, 2018
During the increasing consolidation, centralization, and bureaucratization which marked the political life of the 17th Century, no ruler exemplified the absolutism which marked that era as much as Louis XIV of France. Authoritarianism as practiced by the “Sun King” was a relatively novel type of tyranny, predicated on absolute allegiance to the sovereign, who in turn was in many ways identical with the burgeoning nation-state itself. Louis’s reign was marked by its reactionary nature: his opposition to religious toleration, the fearsome gap between the aristocrats and everyone else, and France’s martial policy toward both the other European powers and overseas colonies. But more than all of those developments, it was his strict absolutism as regards the separation of powers and the identification of the person of the king with the legal code itself which may be Louis’s most darkly enduring political legacy, a position toward government so totalizing that it’s apocryphally been asserted that the ruler claimed “L’Etat, c’est moi!” – that is, “I am the State.”
Louis’s political ideology was shaped by advisers like Cardinal Mazarin and the Marquis de Louvois, who as instrumental as they may have been in the crafting of the political order which would define developing modernity, also supplied the logic behind the king’s increasing authoritarianism, a relativistic system where the sovereign himself could arbitrarily define what was legal or not, and who was himself identical with the mechanism of the government’s will. Such a perspective was anathema both to older political traditions where the power of the state was often surprisingly circumscribed, as well as to the burgeoning democratic ideologies, which would achieve fruition in the American and French revolutions of a century later. Regardless of how often the reality has been from the ideal, a cornerstone of American democratic thought has been that nobody, not even the national executive, is above the law. A sacrosanct principle which holds that arbitrarily redefining the law if it’s in the interests of presidential power is antithetical to the American project.
Currently, the language emanating from the Trump administration’s legal counsel sounds more appropriate to 17th Century France than the America of 1776 (or one would have hoped, the U.S. of today). In a June 2nd New York Timesarticle the authors quote a leaked memo by presidential attorneys Jay Sekulow and John Dowd that was intended for special counsel Robert Mueller, and where both lawyers contend that Trump “if he wished, [could] terminate the inquiry, or even exercise his power to pardon.” Trump’s lawyers argue that “Put simply… the President has exclusive authority over the ultimate conduct and disposition of all criminal investigations and over those executive branch officials responsible for conducting those investigations.” Implications of this type of reasoning are horrifying – there would be no crime that the president couldn’t pardon (including, as he argued in a histrionic tweet today, the authority to self-pardon) and there would be no citizen whom he couldn’t harass as a function of his power. As concerns Trump’s powers, Sekulow and Dowd’s position is “L’Etat, c’est moi,” indeed.
One could imagine that the Sun King would have made good use of ideologues like former New York City mayor Rudy Giuliani, for the reasoning of the vampiric cable news commentator wouldn’t be out of place among Louis XIV’s courtiers. Commenting on the arguments of his fellow attorneys, Giuliani told HuffPost Sundaythat indicting the president under any circumstance would be impossible, and that even if Trump had “shot James Comey” his client couldn’t be indicted. Often Giuliani’s media appearances – cold-blooded, dead-eyed, and Nosferatu-like – are seen as indicative a psyche far beyond his prime. Giuliani’s cavalier admission of all manner of presidential activities which would have been seen as unequivocally illegal but a few months ago are naively understood as rhetorical mistakes, rather than as propaganda.
Declarations like Giuliani’s thus often delight liberals who interpret them as so many accidental admissions of guilt, as more evidence of obstruction of justice. And comments by Trump and his surrogates often are those things. However, we should be careful that when we hear sentiments like Giuliani’s that we just read them as cause to celebrate – as more evidence that Trump’s incompetence and immaturity is hastening a hoped for premature ending to the debacle and travesty of this administration. Liberals are right to point toward Trump’s flouting of procedure, precedent, and institutions as evidence of his authoritarian creep, but they’d do well to listen to those critics further to the left who’ve followed through on the implications, warning us against undue faith in a judicial deus ex machina. That’s because when Giuliani, or Dowd, or Sekulow make claims about the absolute power of the presidency they’re not committing gaffes – they’re issuing warnings.
Not enough in the media are hearing those warnings. We perseverate on Trump’s vulgarity, his cravenness, his stupidity, his immorality, his narcissism, his obscenity. Though such observations aren’t incidental, they’re not as crucial to his authoritarianism, of which his bigotry is an integral part. New York Magazine’sJonathan Chait is honest about the perilous threat the Republic now faces, arguing that the reasoning of the leaked memo is such that Trump’s advocates wish to confer upon him “the ability to open charges against anybody the president wants to charge, and prevent investigations of anybody the president wants to protect, beginning with himself.”
Chait is blunt and accurate in his assessment that those waiting for some future constitutional crisis are distracting themselves looking at the horizon, because as he titles his column “The Constitutional Crisis is Already Underway.” Forgive the cliché that we’re in uncharted waters, in this circumstance it happens to be true. What exactly happens next is hard to predict – that Trump will ultimately fire Mueller is almost a prosaic given now. Will the Republican controlled Congress react to such an indiscretion? That seems unthinkable, as they’re fully enraptured to the vocal minority that now constitutes the anti-democratic death cult that their party has eroded into. That underscores the importance of voting for anyone who is part of the credible resistance in November, which five months out seems distressingly distant. Between now and the elections who knows what fresh, new horrors could await the Republic?
AtEsquire,Charles Pierce (thankfully back from his vacation!) explains that Trump “is consolidating power based on deceit at an alarming rate, and, worst of all, he is becoming more popular for doing so among the only voters that matter to him.” The result is that the “country is hurtling toward the destruction of its most basic ideas about itself,” and Pierce correctly argues without hyperbole that Trump is quickly consolidating everything that would be necessary for him to become a veritable dictator. In a nation as built on accumulated, covenantal myths as our own, we often defer to the philosophical architects of our (supremely imperfect) political order. Studious, republican Thomas Jefferson; federalist, mercantile Alexander Hamilton; radical, democratic Thomas Paine. As shoddy as the construction is behind documents like the Constitution (and if anything, our current predicament demonstrates its numerous faults) there has at least historically been a thread of egalitarian anti-authoritarianism which has defined the Enlightenment project as its best, and which is inherent in the most radical aspects of the American political tradition.
For all of his noxious hypocrisies and personal tyrannies, Jefferson’s contention that “A free people [claim] their rights, as derived from the laws of nature, and not as the gift of their chief magistrate” is a true and beautiful position that seems very far from the perspective of the White House’s current occupier. A more apt motivating political philosophy for Dowd, Sekulow, Giuliani and Trump, especially when the last tweeted that he has the “absolute right to PARDON myself,” would be that which holds that “All law is ‘situational law.’ The sovereign produces and guarantees the situation in its totality.” Of course, that contention, or an equivalent, is not to be found in Jefferson or Hamilton, but rather in the 20th century German philosopher and Nazi Party member Carl Schmitt’s treatise Political Theology. When it comes to what justifies the arguments of Trump partisans, as the unitary president consolidates his power and deconstructs the democratic state, it would be more appropriate to point towards Schmitt than the writings of our revolutionary generation, more appropriate to recall the contention (and threat) that “Sovereign is he who decides on the exception.”
All of which is to say that this is a uniquely perilous time in our history, where the current risks are probably bigger than any of us can imagine (and certainly bigger than the media presents it). We can hope that Mueller’s investigation will bear fruit – it will certainly prove much of what we suspect. But there is no guarantee that the truth of that investigation will set any of us free. We must be aware and take nothing for granted, because nowhere is it written that democracy or America will last forever. And the sooner we realize how perilous its chances are, the quicker that we’ll take that collective responsibility to ensure its continued survival – we must continually earn America. What we must commit ourselves to is taking the threats emanating from this administration seriously, and exercising all legal means to resist it. That means protesting; that means volunteering; that means voting.
If archaic political theory is once again fashionable, the sort that leads lawyers to declare that the president is synonymous with the state, then let’s resuscitate an even older tradition, that of the radical sixteenth-century Scottish humanist George Buchanan, who during the Renaissance warned of rulers who govern “not for their country but for themselves, who take account not of the public interest but of their own pleasure.” Buchanan, a fascinating and under read figure, was an influence on later anti-authoritarian thinking, for in opposition to absolutism he committed himself to the inviolate principle that “the law enjoins a limit to the king’s commanding.” As concerns the monarch, the Scotsman writes: “I want the people, who have granted him authority… to be allowed to dictate to him the extent of his authority, and I require him to exercise as a king only such right as the people have granted over them.” Such a commonsensical, almost standard principle, and yet one which the current sovereign questions. Rather we must commit ourselves to that self-evident, sublime, sacred truth of democratic equality, that contrary to the tyrant’s protestations, it is not he who is the state – but all of us.
Ed Simon is the Editor-at-Large for The Marginalia Review of Books,a channel of The Los Angeles Review of Books.A frequent contributor at several sites, his collection America and Other Fictions: On Radical Faith and Post Religion will be released by Zero Books in November of 2018. He can be followed at his website or on Twitter @WithEdSimon.