We Must Maintain Our Responsibility to the Constitution
By Danielle Allen
Special To The Washington Post
The Mueller report has finally brought us face-to-face with the need to address the “delicate and important circumstance of personal responsibility” in the nation’s chief executive, as Alexander Hamilton put it in Federalist 69.
To quote the Mueller report: “The President has no more right than other citizens to impede official proceedings by corruptly influencing witness testimony.” In addition, the president bears a second burden of personal responsibility -- not merely to execute the powers of his office (for instance, hiring and firing) but also to execute those powers “faithfully.”
That question of faithfulness is what Hamilton had in mind when he referred to the “delicate and important circumstance of personal responsibility.” The constitutional apparatus gave to Congress the power and responsibility of addressing that delicate matter. The most important question now before us is whether Congress will use its power -- and indeed, rebuild it after a period of decline -- to reinforce two core principles of the Constitution: that the president is not above the law and that he or she should be held to a standard of faithfulness.
Hamilton was one of the leading architects of an energetic presidency and was also the person who was therefore most obliged to explain to the public how the country could be assured that such energy would not be misused. A key difference between the British crown and the new American president, he twice insisted in the Federalist Papers, was that the “person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable.” In contrast, the president was “at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law.” The result of this was that, “In the only instances in which the abuse of the executive authority was materially to be feared, the Chief Magistrate of the United States would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?”
Above all, what was materially to be feared was that the president would exercise the powers of his office not faithfully but corruptly. He would use lawful powers -- again, say, hiring and firing -- not for public good, but personal gain.
To explain the expectation that the president will act “faithfully,” the Mueller report reaches to the 18th century, arguing, “A general ban on corrupt action does not unduly intrude on the President’s responsibility to ‘take Care that the Laws be faithfully executed.’ ... The concept of ‘faithful execution’ connotes the use of power in the interest of the public, not in the office holder’s personal interests.” To understand the original meaning of “faithfully,” Mueller’s team cites a 1755 dictionary written by Samuel Johnson, which defines the term as “strict adherence to duty and allegiance.”
The constitutional action of impeachment addresses “treason, bribery, or other high crimes or misdemeanors,” a broad remit that covers both violation of obstruction of justice laws and a failure to meet the constitutional requirement to exercise the powers of office faithfully. Importantly, the obstruction of justice laws comprehensively cover attempts to obstruct. Impeachment was designed, according to Hamilton, to ensure that, “In this delicate and important circumstance of personal responsibility, the President ... would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.” In other words, think of the case of Rod Blagojevich, the former governor of Illinois who was impeached under corruption charges in 2009.
Where does this leave us? Congress has the power and responsibility to act. Congress should consider as one of its highest priorities reclaiming its powers, after decades of its decline in the wake of executive overreach. And it should come to a judgment about the legality and faithfulness of President Donald Trump’s behavior. Political considerations should not outweigh constitutional responsibilities. In that regard, we face the delicate and important circumstance of personal responsibility not only as it pertains to our chief executive but also as it applies to all our representatives.
At the end of the day, the health of our democracy stands or falls on whether we can maintain our personal responsibilities to the Constitution.
Allen is a political theorist at Harvard University and a contributing columnist for The Washington Post.