Presidents Day

How to Trump-proof the presidency

When we reflect on our great presidents (e.g., George Washington, Abraham Lincoln, the Roosevelts), the good ones (e.g., Harry Truman, Dwight D. Eisenhower), and even the poor ones (e.g., Herbert Hoover, James Buchanan), we can at least say they understood our basic constitutional framework. Even ones guilty of major legal, policy, or moral transgressions (e.g., Watergate, the Red Scare, Vietnam, the Iraq War) had some redeeming qualities and accomplishments. Until this one.

Without sarcasm, many Americans wonder if we can get back to a time when a “merely bad” president was the worst we could expect. In other words, we shudder at the possibility that the floor for presidents been permanently and completely eradicated so that future Donald Trumps are possible if not likely.

(Mathieu LEeMauff/iStock)

Plainly, we cannot rely on the discernment of the American people. They did elect the most despicable, corrupt, cruel, ignorant, and lawless president ever to hold office, knowing a great deal about what he intended to do.

As much as we admire Alexander Hamilton, his observation in Federalist No. 68 turns out to be laughably, tragically wrong:

The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.

The Framers did not imagine the sort of restraints necessary to contain a manipulative narcissist wielding an enormous propaganda apparatus and determined to break laws and norms. We need more protection than we have currently to prevent another Trump — or even a mild imitation of him.

Some tools included in the Constitution (e.g., presidents chosen by electors) became a dead letter with the rise of political parties and partisan fervor. Frankly, removal of the president by impeachment or even via the 25^th Amendment has become virtually impossible. Other tools have atrophied for lack of attention (e.g., an enforcement mechanism to prevent receipt of foreign emoluments). And an intellectually dishonest and partisan MAGA Supreme Court majority with an anti-originalist view of an all-powerful chief executive has demolished critical constraints on the presidency (e.g., broad criminal immunity).

“Right-sizing” the presidency and putting in additional guardrails therefore should be top priorities. No single solution is going to stop malicious figures from an autocratic putsch, but we can make it much harder for such a figure to do real damage to our democracy,

Ideally (and in keeping with the Framers’ intentions), we want a president, for example, whom foreign governments or domestic donors cannot buy. There are legislative fixes: Make it a crime to give or receive a foreign emolument of more than $25 in value (or a domestic emolument of any value). Alternatively, pass a law (with an enforcement mechanism) to make such transfers subject to civil forfeiture or a 100% tax.

Congress could pass similar laws (with criminal, civil forfeiture, or tax penalties) requiring presidents to sell or put all business operations and investments in a blind trust before taking office — and, no, letting your sons run your company is not a blind trust. (If we are really fed up with financial corruption, constitutional amendments to reestablish presidential criminal liability and ban dark money could be pursued unless a reformed Supreme Court reverses Trump v. U.S. and Citizens United).

Legislation with simple “no dictator stuff” could easily gain traction: No major White House renovations without congressional authorization, no naming any federal or quasi-federal organization or structure for a sitting president (make the Kennedy Center great again!), and no book/movie/rights deals for any president or spouse while in office. (The Framers would be aghast, no doubt, that such things were even contemplated.)

There are many legislative fixes to curtail presidential unilateral power (e.g., war powers, emergency powers, rescission). But allocating the right for lawmakers or others to bring enforcement actions is essential. Likewise, reviving the Bivens Act to allow civil actions for individuals to recoup damages against any executive branch official could put teeth into presidential restraints. In addition, Congress needs a mechanism to enforce contempt findings that does not depend on enforcement by the administration it is holding in contempt.

Moreover, voters, media and political parties need to rethink the way we evaluate presidential candidates. Grilling them on the specifics of policy/legislation is as useless as it is misleading. The issues will change, presidents will compromise when it comes to real legislation, and campaign promises will fade from memory. Instead, much more attention should be paid to foundational issues about democracy and values (e.g., Do immigrants have rights? Are treaties the law of the land?).

We still may not get candid answers, but the responses to those sorts of questions (or hypotheticals about pardons, donors, and financial impropriety) would be a whole lot more revealing than asking about a 24-point plan for legislation that is unlikely to pass. It is frankly harder to disguise one’s deeply held beliefs (or lack thereof) than to toss out unrealistic political promises.

No future president should ever have as much power and leeway for corruption and abuse as this one. Generally, shrinking presidential power, building up other branches, and imposing statutory and constitutional restraints on presidents should be no-brainers. Ultimately, getting candidates, parties, and voters to focus on character, judgment, and understanding of our Constitution might be the most helpful means of getting back to an era in which the worse we had to fear was a “C-” president. (And can we all agree no presidents older than 75?)

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