Essentially all presidents sooner or later end up commissioning lawyers to put forward an expansive view of presidential power, but those lawyers take pains to argue that they are not making the case for a totally unchecked executive whose existence would pose a fundamental threat to American values.
Donald Trump, however, is a different kind of president.
In a 20-page memo written by Trump’s legal team and delivered to Robert Mueller, as reported by the New York Times this weekend, they make an unusually frank case for a tyrannical interpretation of presidential power.
Trump’s lawyers say he has unlimited power over criminal justice
The key passage in the memo is one in which Trump’s lawyers argue that not only was there nothing shady going on when FBI Director James Comey got fired, there isn’t even any potential shadiness to investigate, because the president is allowed to be as shady as he wants to be when it comes to overseeing federal law enforcement. He can fire whomever he wants, shut down any investigation or open up a new one:
Indeed, the President not only has unfettered statutory and Constitutional authority to terminate the FBI Director, he also has Constitutional authority to direct the Justice Department to open or close an investigation, and, of course, the power to pardon any person before, during, or after an investigation and/or conviction. Put simply, the Constitution leaves no question that the President has exclusive authority over the ultimate conduct and disposition of all criminal investigations and over those executive branch officials responsible for conducting those investigations.
This is a particularly extreme version of the “unitary executive” doctrine that conservative legal scholars sometimes appeal to (especially when there’s a Republican president), drawing on the notion that the executive branch of government — including the federal police agencies and federal prosecutors — are a single entity personified by the president.
But to push that logic into this terrain would not only give the president carte blanche to persecute his enemies but essentially vitiate the idea that there are any enforceable laws at all.
Donald Trump’s impunity store
Consider that if the memo is correct, there would be nothing wrong with Trump setting up a booth somewhere in Washington, DC, where wealthy individuals could hand checks to him, and in exchange, he would make whatever federal legal trouble they are in go away. You could call it “The Trump Hotel” and maybe bundle a room to stay in along with the legal impunity.
Having cut your check, you’d then be free to commit bank fraud or dump toxic waste in violation of the Clean Water Act or whatever else you want to do. Tony Soprano could get the feds off his case, and so could the perpetrators of the next Enron.
Perhaps most egregiously, since DC isn’t a state, all criminal law here is federal criminal law, so the president could have his staff murder opposition party senators or inconvenient judges and then block any investigation into what’s happening.
Of course, as the memo notes, to an extent, this kind of power to undermine the rule of law already exists in the form of the essentially unlimited pardon power. This power has never been a good idea, and it has been abused in the past by George H.W. Bush to kill the Iran-Contra investigation and by Bill Clinton to win his wife votes in a New York Senate race.
Trump started using the power abusively and capriciously early in his tenure in office in a disturbing way but has not yet tried to pardon his way out of the Russia investigation in part because there is one important limit on the pardon power: You have to do it in public. The only check on pardons is political, but the political check is quite real (which is why both Bush and Clinton did their mischievous pardons as lame ducks), and the new theory that Trump can simply make whole investigations vanish would eliminate it.
This issue is bigger than Comey or Mueller
Much of the argument about Trump and the rule of law has focused rather narrowly on the particular case of Comey’s firing and the potential future dismissal of Robert Mueller.
These are important questions in the sense that an FBI director is an important person and a special counsel investigation is an important matter, but the memo is a reminder that they offer much too narrow a view of what the real extent of the problem is here.
One of the main purposes of the government is to protect the weak from exploitation at the hands of the strong by making certain forms of misconduct illegal. Trump’s assertion that he can simply wave away investigations into misconduct because he is worried that the investigation might end badly for his friends or family members is toxic to that entire scheme. Trump, like most presidents, has plenty of rich and powerful friends and a much longer list of rich and powerful people who would like to be his friends.
If he really does have the power to just make anyone’s legal trouble go away because he happens to feel like it, then we’re all in a world of trouble.