Asha Rangappa, a former FBI agent and lawyer, stressed that finding a specific law that Trump broke with the Moscow deal described in Michael Cohen’s plea deal is not what matters. More important, Rangappa wrote: Trump’s behavior is incompatible with the Constitution. Two fears within the constitution: the president might engage in self-dealing behavior and that he might be compromised by a foreign power. The deal to enrich himself, Rangappa believes, is what the Constitution seeks to prevent.
- Did candidate Trump’s attempts to enrich himself violate the constitution?
- Does it matter that the deal never happened?
President Donald Trump listens to President Xi Jinping of China on 1 Dec. 2018 in Buenos Aires, Argentina.
Michael Cohen’s guilty plea for lying to Congress about Trump’s Moscow project prompted a new frenzy of “Did the president commit a crime?” chatter among legal pundits. Finding-or refuting-a smoking gun of criminality has become the singular focus for the president’s supporters and critics alike, and his ex-lawyer’s plea deal has turbocharged the search for evidence that will definitely prove his illegal behavior. The implication is that the federal criminal code is the only arbiter of President Trump’s fitness to remain in office and that Special Counsel Robert S. Mueller III will have the final say on the matter.
As a former FBI agent and lawyer, I sympathize with the temptation to find the statute that will crack open this case. But what matters most here is not found in a criminal law text. It’s a 230-year-old document in the National Archives. Cohen’s guilty plea on Thursday demonstrates that President Trump’s behavior is fundamentally incompatible with the vision of government expressed by the Constitution itself. To wit, Trump not only believes it’s OK to profit from the presidency, but he’s also willing to put the U.S. under a foreign adversary’s thumb to do it.
The office of the presidency outlined by the Constitution is animated by two main fears: that the person occupying it might engage in self-dealing behavior, and also that the president might succumb to foreign influence. The former is most obvious in the in the impeachment clause, which enumerates the crime of bribery as grounds for removal. Clearly, the Framers foresaw that opportunists might seek to profit from the awesome powers of the presidency. It’s less evident, but very much present, in the requirement that the president execute the laws “faithfully,” as stated in the so-called “take care” clause of Article II. Contrary to some assertions that the power to execute the laws gives the president unfettered authority to start and stop investigations, legal scholars like professors Andrew Kent, Jed Shugerman and Ethan Lieb have provided historical evidence that “faithful” execution imposes a fiduciary duty upon the president to act in the public’s interest, not his own.