In 1616, Chief Justice Edward Coke ruled that a command by King James that went against English law, was invalid, saying “In case any letters come unto us contrary to law, we do nothing by such letters, but certify your Majesty thereof, and go forth to do the law notwithstanding the same.” In response, James tossed Coke from the privy council, stripped him of his position, and did as he pleased. Other judges “threw themselves on their knees” and begged for James’s mercy. It’s no coincidence that King James also ruled over the last execution for heresy in British history.
It took a civil war in England to drive home the requirement that the legal constraints of the Magna Carta applied to the king as well as a shopkeeper. This was understood not just as a matter of legal rights, but also as a matter of free speech—no one could tell a jury who might be indicted, instruct them on how they should vote, or force them to reveal their thinking. Justice, free speech, and the right to prosecute even the highest officials, even the king, was enshrined in law decades before there was a United States.
In insisting that he be is immune to prosecution, Donald Trump isn’t looking back to the some early interpretation of the Constitution. Immunity from prosecution was a power that England did not even present to the King. When Rudy Giuliani insists that Trump could shoot James Comey and still not face prosecution, he’s claiming a power that has not existed since the early 17th century.
Not only does the Constitution not free the executive from the bounds of law, it recognizes that holding official office presents the potential for misuse of that office. That’s why Section 9 includes a prohibition on a person “holding any Office of Profit or Trust” accepting a title, present, or emolument from any foreign state. Without the ability to hold the executive to justice for their actions, that emoluments clause would be as empty as … the emoluments clause has proven to be in the face of a Congress that turns a blind eye to billion dollar bribes.
And that, of course, is the real issue. Donald Trump can claim any power that he wants. He can demand freedom from prosecution, the right to jail his opponents, and the ability to constrain the press. But he doesn’t have those rights … so long as some one enforces the law.
One of Trump’s first acts was to hang a picture of Andrew Jackson on the Oval Office wall. Trump made it clear that he favored Jackson above all past presidents. Steven Bannon also made a point of repeatedly comparing Trump to Jackson. While it was easy to write off Trump’s affection as a case of favoring “populism,” there’s a much darker, and more direct reason why Trump hung that lean and hungry face above his desk.
In 1832, Chief Justice John Marshall handed down a ruling that the said Georgia had to treat with the Cherokee Nation as just that—a nation. Under the ruling, Native Americans had the right to limit the access of white on their lands. It was a statement that Native Americans didn’t just own their land, but had a degree of sovereignty concerning who could enter their territory, and it was a direct challenge to white power.
In response, Andrew Jackson delivered some of the most chilling words in US history.
“John Marshall has made his decision; now let him enforce it.”
Jackson’s statement wasn’t some early test of the idea of judicial review. It came thirty years after Marbury vs. Madison. Instead, what Jackson was declaring was his own unlimited power as executive. He counted on the support of white southerners over the Native Americans whose lands they coveted. And Jackson’s statement followed up the “Muslim ban” of his day: The Indian Removal Act, passed at Jackon’s insistence, which gave him sole authority over Native American lands. In declaring that Marshall could not enforce his ruling, Jackson not only ensured the destruction of civilizations and the death of thousands, but put in place a template for would-be populist dictators yet to come.
And that’s exactly the script that Trump is following now. Robert Mueller may make his indictment, but let him enforce it. Let him enforce it in the face of a Republican Congress that doesn’t just ignore Trump’s extra-legal activities, but actively supports them. Let him enforce it in the face of a Supreme Court sabotaged by Mitch McConnell and a judiciary where Donald Trump has appointed federal judges at a record pace. A nation that is already winding the Civil Rights watch in reverse.
What Trump is declaring runs absolutely counter to laws and the Constitution. But of course, that only applies to countries that are bound by constitutional limits. And there is little evidence that the United States is any longer such a country.
On the evening of Trump’s election, Masha Gessen put down the laws that now apply.
Rule #1: Believe the autocrat. He means what he says.
As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
— Donald J. Trump (@realDonaldTrump) June 4, 2018
Rule #3: Institutions will not save you. It took Putin a year to take over the Russian media and four years to dismantle its electoral system; the judiciary collapsed unnoticed.
The appointment of the Special Counsel is totally UNCONSTITUTIONAL! Despite that, we play the game because I, unlike the Democrats, have done nothing wrong!
— Donald J. Trump (@realDonaldTrump) June 4, 2018
Rule #4: Be outraged. If you follow Rule #1 and believe what the autocrat-elect is saying, you will not be surprised. But in the face of the impulse to normalize, it is essential to maintain one’s capacity for shock. This will lead people to call you unreasonable and hysterical, and to accuse you of overreacting. It is no fun to be the only hysterical person in the room. Prepare yourself.
And meanwhile, the media will go along, offering fresh articles on how everyone should better understand Trump supporters, and shutting out Democrats from the airwaves, and pretending that celebrity news is the most important topic of the day. Because … see rule #3. If you’re waiting for the Today show to inform you that it’s time to stand up, don’t worry. That will never happen.