A brief response to Kevin Drum: Did Donald Trump just cross the Rubicon?

With respect, I do not think that Kevin Drum fully appreciates the significance of Trump’s refusal to cooperate with the impeachment inquiry.  When he says that “this letter was plainly not written with legal arguments in mind. No lawyer would do anything but laugh at it” he misunderstands both the provenance of the arguments made in the letter and their likely appeal to the five Republican Party zealots who are currently in control of the Supreme Court.

Trump’s lawyers are making arguments that are essentially the same as those made in the OLC memos and in other legal memos and briefs written during the GW Bush administration revolving abound theories of the unitary executive.    As I understand the OLC and Bush era memos, the president is the living, breathing heart of the country in much the same way that the person of an absolute monarch is entwined with the very essence of the nation. That is what I think Louis XIV meant when he said « l’état, c’est moi » (I am the state).

What I think both Trump’s lawyers and the lawyers who wrote the OLC memos are saying, in essence, is that, by convention, this country chooses a new ruler every four years. But once that ruler has ascended to the presidency, he becomes the state in much the same way that Louis XIV was the state and his power transcends everything.  The president enjoys sovereign immunity and he enjoys it absolutely. The president cannot be investigated, cannot be prosecuted, cannot be forced to use the power of the state to harm himself in any way because he and the nation are perfectly entwined.  The person of the president and the existence of the nation are one. This is the concept of the inviolability of the monarch’s person that I wrote about earlier.

These are not arguments with which I agree but there are many in the hard right with quite respectable legal and philosophical credentials who believe that this is the logical and inevitable resting place of all presidential systems. My assumption is that all of the Republicans in the senate and the five party members on the Supreme Court will grumble a bit but Republican Party’s will to power is such that they’re ultimately going to accept these legal theories as legitimate and correct even though they are obviously and utterly inconsistent with the principles upon which our republic was founded and hundreds of years of Supreme Court decisions. The norm of “checks and balances” is simply destroyed.  The president is now the proprietor of an administrative state which is equated with the person of the monarch.  What Congress gets from this point in the future is thanks to “la grâce de roi” and not because it is a co-equal branch of government.

Essentially, I think that simply by declaring that he is above the law and won’t cooperate with Congress except as it pleases him, Donald Trump and the Republican Party have just crossed the Rubicon. There’s no way to stop them. All we can do at this point is wait and see whether President for life Donald will rule with an iron fist or with an iron fist in a velvet glove. With any luck, it’s still possible that the chaos Trump leaves in his wake will make it impossible for the Republican Party to consolidate its power and continue the shift towards kleptocracy.  This is an important point being made by Paul Krugman but, nevertheless, it’s a very slim threat on which the fate of our republic is hanging.

But as Julius Caesar said as he crossed the Rubicon: “alea iacta est” (the die is cast).