We've Just Crowned a King. What Next?

Perchance AI: An inspiring American King

By Thomas Neuburger

“When the president does it, that means it’s not illegal.” —Richard Nixon

I recently wrote a piece, unpublished so far, that contends at length that it’s over constitutionally. The state has been transformed, by both corrupt parties, into an American kingship. I’ve been writing an ongoing series (“The Fourth American Constitution”) contending just that.

The change is now complete; the last piece in place. Yes, the corner cases need to be sorted, cases that in practice will almost never occur — for example, could the president commit rape in the nation’s defense? But the territory is already marked, defined, surveyed. Unstopped reconstruction is next.

Trump v. US

In defense of that point, I want to go back to the ruling in Trump v. US, the one that cements what previous administrations have tended toward, that the president has near-absolute power.

This is not a new idea; just an expanded one. The growth of the imperial president, which took off in the second third of the 20th century, is reaching its final form in the 21st. From Bush-Cheney’s expansion of the president’s domination of Congress in a self-declared “time of war,” and with Obama’s help, the legalization of torture; to Obama’s de facto adoption of the president’s right to murder American citizens and his failure to roll back any of the power Bush-Cheney assumed, the table was set for Trump and the Court’s decision in Trump v. US.

According to the Brookings Institute, one of the implications of this new decision is that presidential immunity “is absolute with respect to a president’s exercise of his core Article II powers.” As I wrote in “Our Lawless Elites”, this means that the president has the right to break the law whenever he acts as president.

‘When the president does it, that means it’s not illegal’

Am I being too extreme? Slate says no:

Consider, for instance, how the ruling analyzes Trump’s meddling with the Department of Justice after the 2020 election. It acknowledges that the president and his allies pressed the agency to open criminal investigations into the voting procedures in key swing states that Joe Biden carried. Under this plan, the DOJ would pretend to uncover election fraud in these states, then urge their legislatures to create an “alternative slate” of electors who would cast their votes for the losing candidate, Trump. When then–acting Attorney General Jeffrey Rosen refused to go along with the scheme, Trump threatened to fire him. Smith’s indictment zeroed in on this scheme to support his allegation that the president engaged in an unlawful conspiracy to thwart Congress’ certification of the election.

So the crime is “unlawful conspiracy” to subvert congressional certification of the president’s own election. Illegal? Roberts says no.

Roberts held that Trump’s demands for a sham investigation were constitutionally protected. Why? Because, he wrote for the court, the president has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.”

Roberts also says this (Trump v US, p. 5): “The Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute, including with respect to allegations of election crime.”

The President Can’t Be Constrained by Congress or Courts

Roberts literally means that when the president is fulfilling any of his Article II duties, whatever he does, he can never be prosecuted for it. Not ever. Never.

The combination, in other words, of the Court’s agreement with the “unitary executive” view of the Executive branch — that the President, not Congress, owns the Executive Branch — along with the Court’s assertion of presidential immunity when serving his Article II role, puts him or her “conclusively and preclusively” above the law.

Roberts:

In the latter case [i.e., when the presidential act stems from the Constitution], the President’s authority is sometimes “conclusive and preclusive.” When the President exercises such authority, Congress cannot act on, and courts cannot examine, the President’s actions. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.

Not only, under this ruling, is selective and fraudulent federal prosecution fully enabled, but the prosecutorial power of all Executive agencies is as well. Slate again:

Georgetown Law’s Marty Lederman promptly flagged that holding as a “profound” shift in the law, one that will be “weaponized” by “executive branch lawyers and officials for time immemorial.” He also noted that this new rule is not limited to the Justice Department, but seemingly applies to all federal agencies, many of which have their own law enforcement operations. Roberts essentially decreed that Congress may no longer bar the president from corrupting these agencies by instructing them to open fraudulent investigations and lie to the public. That is, Lederman warned, “an extraordinarily radical proposition”—a loaded gun that an unscrupulous president could easily brandish to shoot down the rule of law.

‘An Unscrupulous President’

The key phrase in that last passage is “an unscrupulous president.” Bush II, as president, legalized torture by Executive Branch agencies, and Obama, as president, confirmed that power by failing to prosecute Bush. Obama, as president, ordered an American killed, and neither Trump nor Biden rolled that example back. And naturally, both parties love calls for “increased security.”

All of these acts, and more, are available to an unscrupulous president. Problem is, most presidents are unscrupulous. Certainly all recent ones are. What did our elites think was going to happen — that only angels would win power? Or did they build what elites wanted all along — the fall of the New Deal state, under which the voice of the many had grown relatively strong, and the re-established rule of the moneyed few?

The latter must be presumed. When a person relentlessly tries to achieve a goal, we must presume he wants it.

So what do we do?

Next Steps

The focus on ‘what to do next’ is now first in our thoughts. This will mean testing ideas, refining, revising. I’ll offer these few ideas initially:

1. It’s important to accept, unflinchingly, where we are. Middle class wealth and power of the 1950s and 60s — relative at least to our nation’s previous years — is gone for good. Attacked by every administration from Reagan till now, it will not come back.

2. National Democrats, in the aggregate, offer little protection. At best they slow the decline, at worst they concur.

3. The solution will come from outside regular channels, if one comes at all.

I’ll expand on (3) later. Many paths come to mind, from national dismembership due to climate change stress (this could be a good thing), to something that looks like a slow-moving civil revolt or general strike.

I’ll say for free that at least one of those things will occur — I’m just not sure which will come first, or who of us will be ready, when that time comes, to mobilize toward the next phase.

The “being ready” part matters. More in a bit.