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Trump’s Constitutional Negotiation and its Harms
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Trump’s Constitutional Negotiation and its Harms

President Trump lodged a stunning claim in federal court last week when he filed suit against the Manhattan district attorney to halt a criminal investigation into hush-money payments that he made in the run-up to the 2016 presidential election. 

The claim? That the President is absolutely immune from any criminal process, including a criminal investigation. In other words: the President is above the law.

In support of this sweeping claim, President Trump argued that the President is so busy doing the nation’s work that he can’t be saddled with a criminal investigation. He said that the “unique mental and physical burdens” of a criminal investigation would “undermine the President’s leadership and efficacy both here and abroad.” Quoting the Justice Department, he added that a criminal investigation would “hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs.” Because the D.A.’s criminal investigation impermissibly interferes with his duties as President, he asserted that it violates the constitutional separation of powers and federalism.

But these contentions go far beyond the law. Our Constitution says nothing about presidential immunity from the criminal process. The Supreme Court has never ruled on it. And while the Department of Justice has long held the view that a sitting President cannot be prosecuted while in office, that opinion is limited to criminal prosecution (not criminal investigation). That opinion is also controversial because it contravenes the maxim that no person is above the law. 

If anything, current law suggests that a President can be subject to the criminal process. In 1997, the Supreme Court flatly rejected the exact same arguments that President Trump now asserts. In that case, the Court ruled that President Clinton was not immune from Paula Jones’s civil lawsuit. The context was different, to be sure, but the principle was the same: with some reasonable accommodations, even the President can make time to defend a lawsuit. 

Nevertheless, President Trump’s claim shouldn’t surprise us. After all, this comes from a person who uses a simple, crude, and predictable negotiation strategy in nearly every situation: he offers an outlandish opening bid, and he bargains toward the “center.” But he knows that merely by starting with an extreme position, he already shifted the bargaining range, and pulled the “center” sharply in his own direction. This ensures that he ultimately gets a better deal than he would have gotten if he had started with a reasonable opening offer. 

This strategy may work in one-off real estate transactions. But it doesn’t work in long-term constitutional governance. That’s because by dramatically shifting the bargaining range of constitutional argument and pulling the “center” in his direction, President Trump is setting a precedent for all future presidents. He isn’t just making an extreme constitutional claim for his own presidency; he’s fixing a new constitutional standard for the future. And he isn’t just moving to shut down this criminal investigation against himself; he’s moving to shut down all criminal processes against all future presidents. 

Whether he knows it or not, President Trump is giving his successors, including Democrats, a new range of constitutional arguments—including the claim that the President is above the law. 

Maybe you support President Trump in his effort to halt the Manhattan D.A.’s investigation. Maybe you don’t. Either way, we shouldn’t lose sight of the longer-term harm that his extreme positions work on our constitutional system.


Steven D. Schwinn teaches and writes about constitutional law at the University of Illinois Chicago John Marshall Law School.

Suggested citation: Steven D. Schwinn, Trump’s Constitutional Negotiation and Its Harms, JURIST – Academic Commentary, September 25, 2019, https://www.jurist.org/commentary/2019/09/steven-schwinn-trumps-constitutional/

This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org

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