David Hume Rides To The Rescue

I was looking for another of David Hume's essays when the following passage from his Of Passive Obedience caught my eye.

It is almost peculiar to our constitution to establish a first magistrate with such high pre-eminence and dignity, that, though limited by the laws, he is, in a manner, so far as regards his own person, above the laws, and can neither be questioned nor punished for any injury or wrong, which may be committed by him. His ministers alone, or those who act by his commission, are obnoxious to justice; and while the prince is thus allured, by the prospect of personal safety, to give the laws their free course, an equal security is, in effect, obtained by the punishment of lesser offenders, and at the same time a civil war is avoided, which would be the infallible consequence, were an attack, at every turn, made directly upon the sovereign. But though the constitution pays this salutary compliment to the prince, it can never reasonably be understood, by that maxim, to have determined its own destruction, or to have established a tame submission, where he protects his ministers, perseveres in injustice, and usurps the whole power of the commonwealth. This case, indeed, is never expressly put by the laws; because it is impossible for them, in their ordinary course, to provide a remedy for it, or establish any magistrate, with superior authority, to chastise the exorbitancies of the prince. But as a right without a remedy would be an absurdity; the remedy in this case, is the extraordinary one of resistance, when affairs come to that extremity, that the constitution can be defended by it alone. Resistance therefore must, of course, become more frequent in the British government, than in others, which are simpler, and consist of fewer parts and movements. Where the king is an absolute sovereign, he has little temptation to commit such enormous tyranny as may justly provoke rebellion: But where he is limited, his imprudent ambition, without any great vices, may run him into that perilous situation. This is frequently supposed to have been the case with Charles the First; and if we may now speak truth, after animosities are ceased, this was also the case with James the Second. These were harmless, if not, in their private character, good men; but mistaking the nature of our constitution, and engrossing the whole legislative power, it became necessary to oppose them with some vehemence; and even to deprive the latter formally of that authority, which he had used with such imprudence and indiscretion.

At first, I thought to argue that Hume had it wrong when it came to America faced with another Donald Trump Presidency. That Trump will take unlimited power and still be a tyrant.

Then I noticed a fallacy in my thinking. Donald J. Trump found himself limited in his first term. He wants unlimited power for his second term.

His arguments for presidential immunity imply he is limited by the law.

A federal appeals panel last week expressed deep skepticism about the immunity claim made by Trump’s lawyers and questioned whether it would allow presidents to sell pardons or even assassinate political opponents.

Trump wants the DC US Circuit Court of Appeals to throw out special counsel Jack Smith’s election subversion criminal case against him. Smith has charged Trump with four counts related to his efforts to stay in power after losing the presidential election, and Trump has pleaded not guilty to all charges.

The special counsel’s team argued in the hearing last week that a president is not above the law and that it would be “awfully scary” if there were no criminal mechanism to stop future presidents from intentionally breaking the law, including by taking illegal steps to stay in power.

Trump again argues presidents should have immunity from prosecution even if they commit crimes

It seems to me the Unitary Executive Theory also implies a limitation on the President exists.

The January 6 insurrection tried to overthrow another limitation on Donald J. Trump: the will of the majority.

There is also the difference between the British king as sovereign and in America sovereignty resides in the people.

Trump needs to be resisted now. He must be resisted if he gains power and acts the tyrant. As Hume wrote over two hundred years ago,  executive tyranny justifies rebellion.

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United States v. Trump denies Donald J. Trump immunity from the criminal law. The DC circuit agrees the President is limited by the laws.

The separation of powers doctrine, as expounded in Marbury and its progeny, necessarily permits the Judiciary to oversee the federal criminal prosecution of a former President for his official acts because the fact of the prosecution means that the former President has allegedly acted in defiance of the Congress’s laws. Although certain discretionary actions may be insulated from judicial review, the structure of the Constitution mandates that the President is “amenable to the laws for his conduct” and “cannot at his discretion” violate them. Marbury, 5 U.S. (1 Cranch) at 166. Here, former President Trump’s actions allegedly violated generally applicable criminal laws, meaning those acts were not properly within the scope of his lawful discretion; accordingly, Marbury and its progeny provide him no structural immunity from the charges in the Indictment. 

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Instead of inhibiting the President’s lawful discretionary action, the prospect of federal criminal liability might serve as a structural benefit to deter possible abuses of power and criminal behavior. “Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate . . . .” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). As the district court observed: “Every President will face difficult decisions; whether to intentionally commit a federal crime should not be one of them.” Trump, --- F. Supp. 3d ---, 2023 WL 8359833, at *9.

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Additionally, former President Trump’s “predictive judgment” of a torrent of politically motivated prosecutions “finds little support in either history or the relatively narrow compass of the issues raised in this particular case,” see Clinton, 520 U.S. at 702, as former President Trump acknowledges that this is the first time since the Founding that a former President has been federally indicted. Weighing these factors, we conclude that the risk that former Presidents will be unduly harassed by meritless federal criminal prosecutions appears slight.  

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We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.

Therefore, the President of the United States is not like the King England,  “sacred and inviolable.” Anyone asserting otherwise needs to be resisted as a radical ready to voerthrow the Constitution.

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