Donald Trump’s legal troubles
have had an unexpected result – the proclamation of a view of the Presidency,
in which Trump is legally untouchable and newly all-powerful. The head of the
party of limited government has proposed a theory of American democracy, the
unlimited Presidency, and the rest of his party has fallen into line.
The district attorney of
Manhattan is trying to obtain Trump’s financial records, including tax returns,
in the case about whether the payments to Stormy Daniels by his former lawyer,
Michael Cohen, then reimbursed by Trump, were legal. William Consovoy, Trump’s
lawyer, told the 2nd Circuit Court of Appeals that as President, Trump is
immune from the entire judicial system. Consovoy
said that if Trump shot someone on Fifth Avenue, he could be charged with a
crime only after he is out of office.
After the hearings about the
Mueller investigation, Trump
said in a speech about the Constitution in July 2019, “Then, I have an
Article II, where I have to the right to do whatever I want as president.”
Trump’s impeachment defense
team based their case on a belief that the Presidency is much more than one of
three separate and equal powers. Alan
Dershowitz argued during the impeachment trial in the Senate that anything
a President does to help his re-election is in the public interest, and thus
not impeachable.
In a tweet about the recent
legal case of Roger Stone, Trump
insisted that he has a “legal right” to intervene in criminal cases.
Trump often asserts that he
has the “absolute right” to do what he likes. Last April, he said he had never “ordered
anyone to close our southern border,” but he could do it if he wanted. After he
was criticized for revealing classified information to Russian officials in
2017, Trump
said he has an “absolute right” to release such material to foreign powers.
The Associated Press has
counted at least 29 times since his election that Trump has said he has an “absolute right”
to wield executive authority. One example is his claim that he could end
birthright citizenship by executive order, even though it is assured by the
14th amendment to the Constitution.
In June 2018, Trump tweeted a
new
absolute right in his Presidential theory: “As has been stated by numerous
legal scholars, I have the absolute right to PARDON myself, but why would I do
that when I have done nothing wrong?” Why would he bring it up if he had done
nothing wrong?
Trump’s absolute right is
tolerated with silence by the same Republicans who screamed “dictator” when
President Obama issued an executive order offering deportation relief to DACA
children. “Why is @BarackObama constantly issuing executive orders that are
major power grabs of authority?” Trump tweeted in 2012. Gov. Chris Christie of
New Jersey said, “He’s not a king, he’s not a dictator, he’s not allowed to do
it himself.” House Speaker John Boehner said Obama was acting like a “king or
emperor.” He said Republicans “will not stand idle as the president undermines
the rule of law in our country and places lives at risk.” Now Republicans are
nervously standing by as Trump declares himself above all law.
Trump appears to argue that
he can exercise absolutely all powers that are not specifically denied to the President
in the Constitution. But he goes further. Two key powers are explicitly vested
in the Congress by the Constitution: power of the purse and power to declare
war.
When the Congress did not
appropriate funds for Trump’s beautiful wall, he ignored their decision,
declared a national emergency, and then diverted funds which the Congress had
appropriated for other purposes. Although majorities in House and Senate voted
for a resolution to end the “emergency”, only a dozen Republican Senators
out of 53 voted to reject Trump’s arrogation of new powers. One of those
Republicans, Susan Collins of Maine, co-sponsored the resolution. She
said, “The question before us is not whether to support or oppose the wall,
or to support or oppose the President. Rather, it is: Do we want the Executive
Branch — now or in the future — to hold a power that the Founders deliberately
entrusted to Congress?” But she didn’t believe that idea strongly enough to
vote for Trump’s impeachment.
Last week, the Senate passed
the Iran
war powers resolution that limits Trump’s ability to wage war against Iran.
Eight Republicans voted with Democrats to pass the bill 55-45. The House
passed a similar bill last month 224-194, with only 3 Republicans voting
for it. Only a small minority of Republicans is willing to challenge Trump’s
theory of the unlimited presidency.
The other modern example of a
President asserting absolute rights in instructive. When David Frost
interviewed Nixon in 1977, three years after he had resigned, he asked, “Would
you say that there are certain situations - and the Huston Plan was one of them
- where the president can decide that it's in the best interests of the nation,
and do something illegal?” Nixon
famously replied, “Well, when the president does it, that means it is not
illegal.” The so-called Huston Plan was the plan hatched by Nixon and his
advisors after he had been in office for 2 years and the bombing of Cambodia in
1970 had unleashed massive popular protests. Here’s the
Plan: “The report recommended increasing wiretapping and microphone
surveillance of radicals - relaxing restrictions on mail covers and mail
intercepts; carrying out selective break-ins against domestic radicals and
organizations; lifting age restrictions on FBI campus informants; and
broadening NSA's intercepts of the international communications of American
citizens.” FBI Director J. Edgar Hoover and the National Security Agency, who
would have to carry out the illegal activities, convinced Nixon to abandon the
Plan. But according to Nixon years later, those illegal actions cannot be
illegal if he initiates them.
That appears to be where
Trump is heading. The most illegal Presidents wish to abolish the possibility
that the President can commit a crime.
It is not surprising that a
president so unconcerned about Constitutional norms would try to add to his
powers. It is disturbing and dangerous that the Republican Party as a body
supports Trump going far beyond what they harshly denounced just a few years
ago. Republican Congressmen and -women are sitting by while Trump amends the
Constitution by fiat.
Steve Hochstadt
Jacksonville IL
February 18, 2020
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