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Mr. President: When the Constitution Tells You to “Execute” the Law, It Doesn’t Mean It Wants You to Kill It

July 3, 2019
Mr. President: When the Constitution Tells You to “Execute” the Law, It Doesn’t Mean It Wants You to Kill It

The Constitution requires a president to take care that the laws are “faithfully executed.”

Donald Trump seems confused about the meaning of “execute.”

If you tell somebody to “execute” something, you could mean it in the way gangsters do: Say, that you want Luca Brasi to sleep with the fishes. But there are other linguistic uses of the word. For instance, when the Constitution tells a president to execute the laws, it means it wants the president to enforce them. Not kill them.

Such are the idiosyncrasies of language. Sometimes a word can mean both one thing and its opposite. For instance, the police can “take care” of a witness to a crime by making sure she is safe. But then, you could “take care” of a witness in sense of making sure she never lives to testify.

You can see how this sort of thing might be confusing to a president. Especially if he is not overly concerned with the English language and is a real estate developer from New York.

After all, culture is context.

Funnily enough, the history of presidential impeachment strongly supports the “enforcement” definition of the mandate to “execute” the laws.

The Articles of Impeachment against Richard Nixon, for example, included a charge that the president “failed to take care that the laws were faithfully executed by failing to act when he knew or had reason to know that his close subordinates endeavored to impede and frustrate lawful inquiries by duly constituted executive, judicial and legislative entities.”

And all four of the Articles of Impeachment against Bill Clinton charged him with violating his constitutional duty to take care that the laws be faithfully executed. The specifics of the charges included perjured testimony about his sexual relationships with Monica Lewinsky and Paula Jones and encouraging witnesses to provide false testimony regarding those relationships.

Nothing about sleeping with fishes in there.

The need for Congress to get straight on this bit of constitutional interpretation arises most recently from Trump’s advice to candidates about what they should do if they are approached by representatives of a foreign adversary offering to provide stolen documents to help the candidate get elected. Trump assured America that the director of the FBI was “wrong” when he said that such attempts by foreign adversaries to meddle in our elections should be reported to law enforcement.

“I’d take” the stolen information, said Trump. And he might report it: “If I thought anything was incorrect or badly stated, I’d report to the FBI,” he said in a second-day walk-back.

The problem with this position is that it is illegal for any person to solicit, accept, or receive anything of value from a foreign national in connection with a U.S. election. While there is some disagreement in legal circles as to exactly how to value stolen information—as opposed to, say, money—most lawyers agree that information is something of value, especially in the context of a presidential campaign.

Trump’s endorsement of illegal conduct here was so egregious that it prompted the chair of the Federal Election Commission to tweet, under the heading “I would not have thought that I needed to say this,” that “Electoral intervention from foreign governments has been considered unacceptable since the beginnings of our nation.”

But despite this obvious truth, Trump said that it’s okay to ignore the law, receive the stolen information, and only then decide for himself whether the information provided was “incorrect or badly stated.” Whatever that means.

What Trump seems to be missing is that the problem with receiving stolen information from a foreign adversary in connection with a presidential election is not that the information may be inaccurate, but that it is illegal to accept it in the first place. And it’s illegal even if the information isn’t stolen.

By itself, this endorsement of lawlessness by the sitting president of the United States may not be the biggest deal in the world. It’s just one incident. And maybe President Trump was mis-speaking. Or maybe he just didn’t understand how this area of the law works.

Or maybe not.

Because this is not the first time Trump has flouted, or advocated that others flout, the law:

  • He instructed the then-Commissioner of Customs and Border Protection to disregard the law and cease accepting asylum applications entirely, promising to pardon him if he were sent to jail for it.
  • He told tribal leaders to ignore federal law and drill for oil on tribal land: “Just do it . . . What are they going to do? Once you get it out of the ground, are they going to make you put it back in there?”
  • At a meeting of law enforcement officials, he condoned police misconduct regarding treatment of individuals placed under arrest, encouraging police to be “rough” with suspects. This prompted the head of the DEA to send an email to his entire workforce warning them that despite the president’s suggestion, such conduct was illegal and would not be tolerated
  • He told subordinates to fire Robert Mueller and to put artificial limits on the special counsel investigation, contrary to both the special counsel regulations and the charge Mueller was given by the Department of Justice. He also told these subordinates to lie about his instructions to them.
  • He serially interferes with Department of Justice criminal and antitrust investigations in order to punish political enemies
  • He instructed Michael Cohen to violate federal campaign finance laws by secretly paying hush money to women with whom he had been involved
  • He tampered with witnesses by warning them not to cooperate with criminal and congressional investigations, praised and dangled pardons to witnesses who stonewalled, and called those who were cooperating with governmental investigations “rats.”

None of this conduct squares with a president’s constitutional duty to take care that the laws are faithfully executed.

Unless, of course, by “executed” you mean in The Godfather sense of the word.

In which case, the president is doing a bang-up job.

Philip Rotner

Philip Rotner is a columnist whose articles appear in national publications and on his website, Philip is an attorney who has practiced for over 40 years, both in private practice and as the general counsel of a global professional services firm.  Philip’s views are his own, and do not reflect the views of any organization with which he has been associated.