Will the Supreme Court crown Trump king? ~ The Week

Damon Linker

The Supreme Court.

Illustrated | Getty Images, iStock
The Supreme Court heard oral arguments Tuesday in three cases touching on presidential immunity from congressional and grand jury investigations. If a majority of the justices side with the sweeping arguments made by Justice Department lawyers — and even more so if they are persuaded by the especially radical claims put forth by President Trump’s personal attorneys — then the U.S. will have taken a big step toward elevating the presidency into a monarchical office. In this new world, the president would not only be, in effect, an elected king. He would also be a king with two bodies — more like the absolute rulers of pre-modern Europe than the head of one of three co-equal branches in a system of republican government.

The phrase “the king’s two bodies” comes down to us from the political thought of the Middle Ages, and specifically from the work of the pioneering intellectual historian Ernst Kantorowicz. In his 1957 book on medieval political theology, Kantorowicz showed how thinkers in Christian Europe conceived of the political power exercised by kings. Inspired by the idea of an incarnational God and developing dualistic concepts inherited from various philosophical sources, a range of writers and artists pictured kings as having a physical, mortal body and then a second, symbolic or mystical “body politic” that endures in the monarchical office and is handed down from one corporal king to the next.

This concept helped medieval Europeans make sense of otherwise mysterious aspects of politics, such as the idea of sovereignty and its (perhaps automatic) transfer from one leader to another upon the death of a king. The theory may have been most clearly expressed in the well-known, paradoxical phrase first uttered upon the death of the French King Charles VI and the ascension of his son Charles VII in 1422: “The king is dead, long live the king!” As the centuries wore on and theories of state sovereignty became more sophisticated, the concept of the king’s two bodies developed into the idea of monarchical absolutism rooted in powers inherent in the office of the king and temporarily taken on and exercised by a series of contingent individuals who hold the office.

These highly metaphysical ideas of sovereign power are very different than the concepts that animated the minds of the American constitutional framers when they devised the office of the presidency. Even those, like Alexander Hamilton, who favored a powerful executive more resembling a monarch, didn’t go so far as to advocate placing the presidential office beyond the limitations of mortality and man-made law. The presidency as described in the Constitution and defended in The Federalist Papers (including those authored by Hamilton) is an office with strictly enumerated powers that are checked in a multitude of ways by the other two co-equal branches of the federal government: Congress and the judiciary.

Efforts by presidents to expand the powers of the nation’s chief executive began almost immediately. John Adams supported, and Congress passed, the Alien and Sedition Acts, which gave the president the power to deport foreigners living in the country and to define and harshly prosecute treasonous activity and writing. Abraham Lincoln suspended habeas corpus during the Civil War. Woodrow Wilson both deployed censorship during World War I and advocated a much more sweeping role for the presidency within the federal government. Presidents would now use rhetoric to go over the heads of Congress and speak directly to the American electorate, attempting to shape and deploy mass public opinion with an eye to undertaking great national projects.

This vision of an active executive combined after the Second World War with the unprecedented powers of the national security state to create the leviathan of the modern presidency. In their capacity as commander in chief of armed forces stationed and countering threats (real and perceived) all around the globe, modern presidents control vast powers of surveillance, intelligence gathering, and military action. And because such powers concern matters of national security, they are often shrouded in secrecy and protected by assertions of executive privilege that have been upheld by the courts on many occasions.

That brings us to Tuesday’s arguments before the Supreme Court, none of which involved anything as grave as state secrets. Instead, the three cases (Trump v. Mazars; Trump v. Deutsche Bank; and Trump v. Vance) concern Trump’s business and financial dealings before and since he became president, along with those of his family. The first two cases arose from the president’s effort to fight attempts by three House committees to obtain financial records (including his tax returns) to confirm that his financial and conflict-of-interest disclosures have been accurately filed. The third case follows from the president’s effort to stop subpoenas from a grand jury in New York City that is looking into whether New York state laws were violated when Trump and those in his employ attempted to cover up hush-money payments.

Before the cases reached the Supreme Court, lawyers defending Trump argued before U.S. Court of Appeals for the D.C. Circuit that Congress’ subpoenas are an unconstitutional attempt to harass the president. The court disagreed, upholding a ruling from U.S. District Court Judge Amit P. Mehta, who wrote that “it is simply not fathomable that a Constitution that grants Congress the power to remove a president for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct — past or present — even without formally opening an impeachment inquiry.” Douglas Letter, general counsel for the House, echoed the argument before the Supreme Court, adding that “there is nothing unprecedented about congressional subpoenas for documents that may shed light on presidential affairs.”

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