Can an Illegal President Do Legal Things? Maybe Not.
Here’s how we might unwind a toxic presidency.
In an earlier version of this story, the question of presidential legitimacy, although a hot topic, was still much in doubt.
Times have changed.
We have to be careful in our assessment in how we define legitimacy, because this is a very new question in the history of our young country. So while the jury is still officially out, by certain definitions you have to question how POTUS “won”, and whether or not it would have happened without violating both election laws and other federal statutes.
The question has to be addressed: Did the activities of the present POTUS and his surrogates, in all likelihood, tip the election through illegal means? If so, we have an illegal president.
To that end, my article Dear The World developed some metrics about exactly how close the presidential election of 2016 was. Spoiler alert: It was very, very close. And in fact the whole election turned based on the votes of 29/1000 of a percent of those who voted. That’s twenty nine one thousandths of a percent! A minuscule margin. Based on where we are now, you have to ask three questions to get to the truth.
First, were active measures taken by a foreign entity, in the form of propaganda, dissemination bots, and active “trolling” (spreading of wantonly false and negative stories) to the extent that some voters were swayed by these tactics. All of our intelligence services have verified the active measures. And anybody in the business of persuasion, advertising, politics, or outright propaganda techniques, will agree that these measures can be in some way effective.
Second, was the election close enough such that the effectiveness of the active measures actually could have, in theory, turned the results? We know that active measures were used extensively in the three states, Wisconsin, Michigan, and Pennsylvania, that tipped the election. The elections in those states were so close that if less than 39,000 people had switched their votes from Trump to Clinton, Clinton would have won. Those voters represent 29/1000 of a percent of the electorate. (Again, if you question those statistics, please review Dear The World. These numbers are real and readily available.)
Finally, even accepting the active measures and the closeness of critical states in the election, to argue that the POTUS is illegitimate, we need to know that members of the Trump campaign were active participants in encouraging and supporting the efforts of both a foreign entity and, even worse, a US adversary. Were they part of the “team” using active measures to turn the election?
Until recently this last factor was denied with great outrage by Trump et al. It appears now that the outrage was false. It appears that the Trump election machinery encouraged and welcomed the active measures. To be sure the level of interaction is yet to be determined, and is being investigated by the Special Counsel appointed by the Department of Justice. But the fact of baseline collusion has, at least as of July 11, 2017, been convincingly demonstrated.
This third issue is by no means dead, and it may be debated for years to come, but certainly given the three items needed to demonstrate illegitimacy of a POTUS, one can now at least make a credible argument that all three criteria have been met.
So the question now looms larger. IF we have a President of the United States that was elected through illegitimate means, how do we address that? Impeachment can remove a President from office. But what of the damage done while in office? How do you unwind the actions of an illegitimate President?
Perhaps we need some new laws to address what has become unthinkable — a Commander in Chief that has no right to be there.
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Below is the original article, with minor edits, addressing the concept of Fruit of the Poisonous POTUS.
There is a legal theory called the Fruit of the Poisonous Tree. It applies to the rules of evidence, in that under most circumstances (with reasonable exceptions) if certain evidence is obtained illegally, and if subsequent evidence is obtained based on the illegally obtained evidence, then ALL of the evidence may be inadmissible in court.
For example: The police in Grizzly, Texas break into an apartment and find a key for a locker in a bus station. In the locker, they find a stash of drugs. However, later a court finds that the Grizzly PD did not have a legal warrant to get into the apartment where they found the key and learned of the locker. The legal result? They can’t use the drugs as evidence, because the evidence was obtained as the result of an illegal search. It is the “fruit of the poisonous tree.”
Again, there are reasonable exceptions to this, but the theory of Fruit of the Poisonous Tree is settled law.
Today, we have a Chief Executive whose legitimacy has been put in question. And while that is being investigated, the Chief Executive is charging along with Executive Orders and many other initiatives. He is acting as if he is the legal President because, for the moment, he is.
We have no provision in our Constitution to call a “redo” on an election. There are numerous ways in which a presidency can be ended prematurely, among them resignation, impeachment, the 25th Amendment, and death.
But as an academic question, what happens if a President is actually determined to have been installed illegally?
Not jumping to conclusions, but it is an interesting legal / theoretical question.
Surely it’s a tough case to make, but what if, by the preponderance of evidence, it is determined that the POTUS and VP are only in their present positions due to essentially illegal, possibly treasonous, actions? In other words what if we look at all the facts and factors and calmly, but clearly, determine that a President is in fact illegitimate? What would we do?
We have had very close elections — 2000 comes to mind. And the mess in Florida that year, and the subsequent activity of the Supreme Court, widely criticized in dissenting opinions, certainly gave cause to question the procedures that were followed, but the George W. Bush presidency was never questioned as being illegitimate.
The fact is that some reputable, elected officials (e.g. John Lewis, D-GA) have gone as far as calling the Trump presidency illegitimate. They cite the very close general election, but especially the length and breadth and depth of Russian interference, including micro-targeted, bot-enabled, massive propaganda campaigns in key swing states.
So while this is being investigated, long before charges have been filed (if they ever will be) or litigated (if it ever comes to that) it might be an interesting legal question to discuss the Fruit of the Poisonous POTUS.
If a President is not legal, what happens to each Executive Order that was signed? If it is determined that the Executive was not “legal” while in office, how could their Orders be legal? If the President is not legal, can their Cabinet, subject to Senate confirmation but nominated by the President, also be legal? If Cabinet appointments, fruit of the poisonous POTUS, are illegal, how can any order they sign, or policy they enact (or cancel) be legitimate or legal? If the President is not legal, how can their Supreme Court nominee or other court appointments be legal? If in fact there is Fruit of the Poisonous POTUS, how far does it go?
In every state the President and Vice President appear as a single item on the same ballot. By extension, an illegal POTUS logically implies an illegal VPOTUS.
It would seem as a matter of national significance, even IF the President somehow leaves office under a cloud, that it will be highly significant to complete the assessment of legitimacy. Because regardless of who is actually serving as President, how can we respect any law or appointment that was authored or endorsed by a President that should not have been there in the first place?
We will need a very clear, legally sound definition of “legitimate”, and a large, compelling body of evidence making that determination one way or the other. We have neither at the moment.
But IF we find that a President served through some illegality or deception, and was not the rightful holder of the office, what happens to the “fruit” of their activity while installed?
Clearly, the notion of “Fruit of the Poisonous POTUS” is NOT a thing today. But it might be relevant soon, and perhaps thinking it through now could drive future legal proceedings. It would be groundbreaking law for sure, and probably find its way to the Supreme Court.
Now, THAT could prove awkward! But at least one member of that Court should probably be recused from the decision.
(Twitter: @fbonn2000)
