The Trump Indictment: What Can a Unitary Executive Do?

Source: The American Conservative.

The writer observes that the indictment of Donald Trump over the Mar-a-Lago national security documents violates a fundamental Constitutional norm. To wit:

The “unitive executive theory” periodically becomes a trendy topic during newsworthy uses of presidential power, but the theory itself is simple and based in the Constitution. Because Article II of the Constitution vests the executive power of the United States in the president, then, according to the Yale Law Journal, “The executive [branch] is headed by a single person, not a collegial body, and that single person is the ultimate policy maker, with all others subordinate to him.” This theory often gets disparaged as promoting tyranny or a monarch-like president, but it is actually quite reasonable. The president of the United States is the executive, and every other member of the executive branch (from the heads of the CIA and the State Department to the janitors in the Pentagon) is subject to the president and serves at his pleasure.

This is a compelling observation. At its heart it holds that Congress cannot control the president because those laws Congress may pass which might be used for such a purpose are necessarily preempted by Article II of the Constitution.

This reasoning is merely common sense, if what you want is a functioning democracy. That is, if you want the president to represent the people who elect him, then you don’t want Congress to be able to interfere in that relationship. You want the president to be “above the law,” except in the case of “high crimes and misdemeanors.”

I fully expect Trump to be convicted and sent to prison because the Constitutional foundation of our republic is no longer functioning.