In making their case for sweeping presidential immunity from oversight, Trump’s private lawyers and the Justice Department rely on theories of the powerful “unitary executive,” which they argue is established by the Constitution. But the text of the Constitution, the debates of the framers and the proceedings of the first Congress undermine their position.
The essence of Trump’s argument that his private financial records should be exempt from disclosure is that, given the unique status of the office, the Constitution gives the president implied and exclusive powers. Those powers supposedly shield the president from congressional oversight and criminal process by federal or state officials. Here’s the problem: None of these assertions has a clear basis in the text of the Constitution itself.
Article II states that “the executive power shall be vested in a president.” However, this language does not establish exclusive executive power or immunity. In fact, the text of the Constitution suggests that the framers intended congressional oversight. One emoluments clause requires congressional consent for anyone “holding any office of profit or trust under [the United States]” to accept a present or other benefit from a foreign leader or state. The other, specific to the president, prevents the chief executive from receiving “any other Emolument” from the federal government or the states beyond his compensation.
Since the framers were especially focused on the historic dangers of secret bribes, it is fair to assume that they wanted such secrets to be uncovered. How can these two clauses be enforced without oversight? The courts have made it difficult for private plaintiffs to sue, so surely public officials like members of Congress or state prosecutors must be empowered to prevent these clauses from becoming a dead letter.
Without the text to back them up, the unitary presidentialists turn to history, particularly the words of the framers and the proceedings of the first Congress from 1789 to 1791. Here they run into additional difficulty: James Madison, Alexander Hamilton and the first Congress rejected pillar after pillar of this theory, implicitly and explicitly.
For example, Madison argued in the constitutional convention of 1787 that executive power “should be confined and defined,” warning against the “Evils of Elective Monarchies.” Trump and the one judge who sided with his argument relied heavily on Hamilton’s and Madison’s Federalist Papers on the separation of powers to keep the president above congressional oversight. But the titles of Madison’s essays reveal that he was concerned with checks and balances through overlapping powers and process, not complete separation: “These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other” and “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.”
To overcome this contrary evidence, the unitary theory then turns to the first Congress, in particular what’s known as the “decision of 1789,” in which they claim lawmakers recognized that the Constitution established an implied presidential removal power. To the contrary, a new examination of the debates shows that Congress retreated from this constitutional interpretation. The decision of 1789 actually demonstrates that Congress has the power to oversee the executive.
Lawmakers worried about preventing financial corruption in the executive branch and were therefore reluctant to give the president exclusive and unlimited power to remove officials. One representative warned of a president who would use the power to find a treasury secretary “congenial to his own” and establish a “throne on the ruins of your visionary republic.” A president’s financial corruption could “secure his election perpetual.” Thus, Congress empowered officers to serve as whistleblowers, to report and investigate corruption, and to remove high officers through the courts.
Moreover, the first Congress provided for investigation of presidential powers. The Judiciary Act of 1789 preserved a family of English procedures, called writs, which enabled public officials and private parties to hold executive officials accountable. Instead of making presidents immune or above the law, the Founding era took these concrete steps for congressional, independent executive and judicial oversight.
The Founders worried about presidents shielding their financial corruption and misusing the Treasury to hold on to power. A court faithful to their vision will rule against Trump’s extreme arguments.