The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I'm not sure how to get people to start paying serious attention to what Donald Trump is saying in this campaign. His comments deserve serious attention—not because the comments themselves are serious or raise serious issues or serious ideas, but because they are being uttered by someone who could be president of the United States. Perhaps the only way to get people to take what he says seriously is to show how they can't really be taken seriously, because they are so far outside the boundaries of the president's constitutional role as to be ridiculous.
In Episode 1 of "Celebrity President," Trump tries to bully a sitting federal judge who is hearing a case in which he (Trump) stands to lose millions of dollars—by, among other things, suggesting that because he is a "Mexican" [which, actually, he is not—he is an American citizen, born in Indiana of Mexican parents] he will be unable to preside fairly over Trump's lawsuit. Much hilarity ensues, and the episode ends triumphantly on the courthouse steps, when now-President Trump rips up the court's order that he pay damages to defrauded Trump University students and says: "You think I have to pay?! Make me!! I'm the president now, and all those cops and federal marshals—they work for me!!! (wild applause from the crowd).
In Episode 2, our Celebrity Candidate doubles down, this time addressing those pesky constitutional protections for criminal defendants. As everyone knows, his likely Democratic opponent in the general election, Hillary Clinton, is the subject of a pending and ongoing investigation by the Justice Department concerning her use of a private email server during her years as secretary of state. Candidate Trump, dispensing with all of those silly constitutional niceties—you know, all that stuff like "the presumption of innocence," and "trial by jury," and "proof beyond a reasonable doubt," and "the rules of evidence" and all of that silliness—says, at a campaign rally: "She's guilty as hell . . . She has to go jail."
He really said this. The news cycle being what it is these days, these stories come and go awfully fast—but we really do need to linger over these a bit, and make sure that the American public hears what he is saying and thinks about what they are hearing; I'm actually pretty confident that, if they do, they will not want him to be their/our president.
I'll repeat what I said earlier: He wants to be president; so we should listen to what he says and imagine him saying those things as president.
And it is simply unimaginable that a U.S. president would say anything like what he said. [I guess that's why we should be thankful that all of this is just a TV show]. If Episode 1 did not convince you of his contempt for constitutional principles, Episode 2 surely will do so.
To begin with, presidents do not decide whether people are (or are not) guilty of anything, ever, because that is not a power we give to the executive branch. The executive branch—the attorney general, the federal prosecutors, the Justice Department lawyers, the federal police, the FBI, etc., with the president at its head, the Top Cop and Commander in Chief of the Armed Forces—has very broad powers to "enforce the law"—to investigate possible criminal activity and to charge people, based on the evidence it collects, with having violated the law. The judgment as to whether they actually did violate the law, however, is—very intentionally—taken out of the executive's hands and given over to judge and jury.
This separation of powers between the police and the judiciary could not be more crucial in our constitutional arrangement. The prosecutor gets to argue that you're guilty, before a neutral decision-maker; he/she doesn't get to decide whether or not you are guilty. For someone who wants to be president to suggest otherwise, and to insert himself inappropriately into this process—implying that he has already determined guilt or innocence, and that he doesn't really need to hear what the Justice Department lawyers might say, or what a judge or jury following the rules of evidence might say, about the matter—is unforgivable.
Many countries work differently than ours, of course; once the executive department (the police and prosecutors) determine that you've committed a crime, you are deemed to be guilty, and you can be punished accordingly. We do not want to become that kind of country.
Trump either does not know about this, or he does not care. I don't know which is worse. Neither, in any event, is acceptable in a potential president.
And second: Though it's great TV, the suggestion by a potential president that a political opponent should be jailed should ring every bell in our autocrat-detection devices. The list of countries with supposedly democratic institutions that began their downward spiral toward one-man rule with efforts to jail prominent members of the political opposition is a long one: Venezuela, Ukraine, Burma, Georgia, Zimbabwe, Russia, Honduras, Syria, Egypt …
"The governments of those countries are laughingstocks, jokes—not like our great constitutional republic," you might say. Precisely my point.