Mr. President: When the Constitution Tells You to “Execute” the Law, It Doesn’t Mean 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 Godfather sense, as in “Luca Brasi sleeps with the fishes.”  And nobody misunderstood the meaning of “execute” when the states of Illinois, Florida and Indiana executed mass-murderers John Wayne Gacy, Ted Bundy, and Timothy McVeigh.

But there are other linguistic uses of the word. For instance, when the Constitution tells a president to faithfully execute the laws, it means it wants the president to enforce them, not kill them. 

Such are the idiosyncrasies of our language.  Sometimes a word can mean both one thing and its opposite, depending on the context. For instance, the police can “take care” of a witness to a crime by making sure the witness is kept safe. But a gangster can “take care” of a witness by making sure the witness never lives to testify.

You can see how this sort of thing might be confusing to a president, especially one who is not overly concerned with language and doesn’t like to read.

The history of presidential impeachment strongly favors the “enforce” interpretation over the “eliminate” interpretation.

The Nixon Articles of Impeachment, for instance, included a charge that Nixon “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 endeavoured to impede and frustrate lawful inquiries by duly constituted executive, judicial and legislative entities.” 

And all four 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 or the death penalty 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 us 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 it,” said Trump of the stolen information.  He’d only report it to the FBI if he thought anything was “incorrect or badly stated.”

The problem with that 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 serious lawyers agree that information is something of value, especially in the context of a presidential campaign.

Trump’s endorsement of illegal conduct 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.”  

Despite this obvious truth, Trump is saying that it’s OK to simply ignore the law, receive the stolen information, and only then decide for yourself 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.  Even if it wasn’t stolen, which in this case it was.  That only makes it worse, effectively turning Trump into not just an everyday criminal, but also a fence. 

By itself, this endorsement of lawlessness by a sitting president may not rise to the level of a high crime or misdemeanor.  A single incident of lawlessness, possibly explainable as a careless articulation by a President incapable of understanding how the law works, may not be the stuff of impeachment.   

But this is far from the first time that Trump has flouted, or advocated others to flout, the law.  There’s a deeply disturbing pattern here:

• 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 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, prompting the head of the DEA to send an email to his entire workforce warning them that such conduct wouldn’t 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, and then to lie about it

• 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.