Even If His Campaign Broke Laws, Trump Isn’t An Illegitimate President

Even If His Campaign Broke Laws, Trump Isn’t An Illegitimate President

The idea of an 'illegitimate' president whose real or imagined scandals render his lawful actions and appointments 'illegitimate' is foreign to the Constitution.
Nathanael Blake
By

Democratic politicians and pundits are claiming that Donald Trump’s presidency is fundamentally illegitimate, and therefore so are his exercises of presidential power, such as his judicial nominations. This is mostly an attempt to derail the pending confirmation of Brett Kavanaugh to the Supreme Court.

However, some on the left even believe that if the president is removed from office and found guilty of crimes related to the election, then all of his actions in office will be delegitimized and undone as null and void. This is political Donatism, with all the allure and errors of that old heresy.

Donatism developed in the aftermath of the Diocletian persecution. It was defeated largely through the efforts (theological and temporal) of the great Augustine of Hippo. The heart of the controversy was whether the validity of Christian sacraments depends on the worthiness of the minister. During the persecution many Christians had complied with anti-Christian imperial edicts: Could clergy who had previously betrayed the faith still administer valid sacraments? The spiritual implications were of first importance, as they called into question the validity of communion, confession, baptism, ordination and the rest of the sacraments.

The attraction of Donatism is still evident today as we witness revelations of sexual abuse and immorality among Catholic clergy, which was often covered up by leaders, some of whom were guilty themselves. How can such men be valid ministers of the gospel?

If these theological queries seem obscure, I once heard a useful analogy made to college degrees. If a professor is found to have committed academic fraud, does this delegitimize all the courses taught by that professor? If the sociology class you took to meet a requirement years ago turns out to have been taught by a professor who did not have a legitimate PhD, or who cheated to earn tenure, do you need to go retake the class lest your own degree be revoked?

The academic answer mirrors that of Augustine to the Donatists. He explained that the sacraments do not depend on the righteousness of man, but on the grace of God and the authority bestowed on the church. Likewise, the validity of academic degrees depends on the authority of the institution that grants them, not the academic integrity of individual professors.

Just as students do not need to scrutinize the academic records of professors (and of their professors, and so on) to ensure a valid academic lineage, Christians do not need to scrutinize the spiritual lineage of clergy to ensure the validity of the sacraments they receive. Just as bad professors may be punished and removed from their positions without the classes they taught being nullified, bad priests may be disciplined and even defrocked while the sacraments they administered under the authority of the Church remain valid.

The alternative is untenable. If the validity of the sacraments depends on the worthiness of the minister, then a believer can never be sure about the efficacy of the sacraments they receive. After all, a priest might be secretly unworthy, their illegitimacy known only to God. Or he may have been ordained by a secretly unworthy bishop, thereby nullifying the priest’s ordination and thus invalidating the sacraments he administers. No believer could ever be sure of receiving a valid baptism, communion, or confession. The Donatist effort to ensure the purity and legitimacy of the church and its sacraments ends up delegitimizing both.

This brings us back to Trump. Liberals declarations about presidential legitimacy are political Donatism. They suggest that a president’s personal worthiness determines the validity of his actions and appointments — the lawful exercise of his constitutional powers may be “illegitimate” if he is somehow corrupt. Like its spiritual equivalent, this theory is untenable, both constitutionally and practically.

The Constitution contemplates the possibility of presidential malfeasance, and offers many ways to remedy it. Congress has the power to reject the president’s nominations, remove him from office, legislatively repeal his administrative decisions, abolish offices filled by his appointments and impeach his officials for misconduct. If this is what liberals want Congress to do, they should say so and promote candidates who support this agenda. But the idea of an “illegitimate” president whose real or imagined scandals render his lawful actions and appointments “illegitimate” is foreign to the Constitution.

Consider the implications of taking this idea seriously. Should the military obey the orders of an “illegitimate” president? Should the decisions of judges he has appointed be respected and followed? Should otherwise lawful executive orders be implemented? Without having the courage to say it directly, the left is suggesting that the answer to these and related questions is “No.”

If so, this raises obvious difficulties. Is there a statute of limitations on presidential illegitimacy? What if historians discover evidence of scandals or electoral corruption after someone leaves office — can his actions and appointments (and the actions of his appointees) be retroactively nullified? Do the already-known wrongdoings of Kennedy, Johnson, Nixon, Clinton, and others nullify the legislation they signed, or the decisions of judges they appointed? Does this retroactive nullification extend to congressmen? State governors and legislatures? Ordinary government officials?

If so, government would become impossible. There is no room in our constitutional order for a political Donatist Pope deciding which politicians and officials are legitimate and which are not.

The idea of an “illegitimate” president is either a meaningless rhetorical flourish urging the election of a Congress that will more vigorously oppose the president, or it is an attempt to create a constitutional crisis. If applied, it would be a banana-republic tactic that would make governments unstable and governing untenable. It would be a farce, like the NCAA’s attempt to regulate college football amateurism by occasionally and capriciously voiding victories.

This sort of drastic measure might be justified in extremity, but the left is trying to argue that Trump’s exercise of the constitutional powers of the presidency is illegitimate because of possible involvement in campaign finance violations related to buying the silence of his mistresses. That would be bad, possibly criminal, but it would not be delegitimizing in an unprecedented way.

Even if he broke the law during his presidential campaign, Trump was still legitimately elected according to constitutional procedure. If Congress wants to impeach and convict him for this or anything else, it can. Until then, Trump will be the legitimate president of the United States. Even if he is removed, his lawful actions and appointments will retain their legitimacy, despite the new creed of political Donatism.

The original Donatists at least believed in their doctrine and its importance. They thought it crucial to the eternal happiness or misery of human persons. Today’s political Donatists are developing their dogmas out of pure political opportunism. They are either hacks, or fanatics willing to sacrifice the constitutional order in fit of pique over losing an election.

Nathanael Blake is a Senior Contributor at The Federalist. He has a PhD in political theory. He lives in Missouri.
Photo White House / public domain

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