Quote of the day: "They are saying not just that the president is above the law, but in effect that he is the law
Michele Goldberg, asks in the NY Times, Does the Law Apply to Donald Trump?
It’s fitting that just as Donald Trump passed the 500th day of his despicable presidency, he marked the occasion by tweeting that he is above the law, declaring that he has “the absolute right to PARDON myself.”
… Trump attorney, Rudolph Giuliani, drove home the claim of sweeping presidential authority, telling HuffPost that Trump couldn’t be subpoenaed or indicted while in office even if he’d shot the former F.B.I. director James Comey.
Charlie Savage reports on the joined legal battle over whether Trump is an omnipotent monarchical ruler, subject to no norms, no legal precedent, no moral strictures, and bound by no laws: Trump and His Lawyers Embrace a Vision of Vast Executive Power.
President Trump, ramping up his assertions of extraordinary powers, declared in a tweet on Monday that he had “the absolute right” to pardon himself for any crime.
While no president has ever purported to pardon himself, and it is not clear whether Mr. Trump could legitimately take such a step, the president’s claim was the latest in an aggressive series of moves to assert his control over federal law enforcement.
Trump’s legal team, in concert with Trump’s tweets, makes startling claims of unlimited power.
He has unfettered authority to fire the F.B.I. director, which he did last year; to order a federal investigation opened or closed; and to pardon anyone, including felons or criminal suspects, his longtime personal lawyer Marc E. Kasowitz said in a confidential memo last June. “The president cannot obstruct himself or subordinates acting on his behalf by simply exercising these inherent constitutional powers,” he wrote.
The implications of Mr. Trump’s claim also go beyond the context of his lawyers defending him in a criminal case. If obstruction statutes cannot stop Mr. Trump from shutting down an investigation even if he did so with a corrupt motive, then Justice Department procedures and regulations also cannot stop him from ordering an investigation into his political opponents for corrupt reasons.
Those factors make the Trump lawyers’ claims different from assertions by previous presidents that the White House can lawfully bypass important statutes, said David Kris, a former senior Justice Department national security official during the Bush and Obama administrations who is a co-founder of the consulting firm Culper Partners.
“Trump is doing this not for national security reasons but to impede an investigation into himself and his associates, and he’s staking a far more sweeping claim to power than even other presidents by saying he can use the Justice Department for whatever he wants,” Mr. Kris said.
He added: “They are saying not just that the president is above the law, but in effect that he is the law — that he is the personification of justice and cannot obstruct himself. That is very stark and not very persuasive.”
Many legal scholars have derided such claims as going too far, although no Supreme Court precedents offer definitive guideposts about whether Congress can make it illegal for a president to use his powers to supervise the Justice Department in a corrupt way.
“We overthrew control by a monarchy, and the Constitution signals in multiple places that the president is subject to law,” said Peter Shane, an Ohio State University law professor and co-author of a separation-of-powers casebook.
While Britain’s kings traditionally wielded a prerogative power to suspend or dispense with laws, the framers of the Constitution required the American president to faithfully execute them, Mr. Shane noted. Though what that means can sometimes be blurry, he said, the Trump claim struck him as dubiously broad.
“The idea that the president could — regardless of his motive — just work his will on the investigation of civil or criminal offenses, that the Constitution frees him to act with corrupt motives, is just an affront to the idea of the president as a public trustee and subject to law.”
Goldberg considers Trump’s motives and Republican responses.
The Trump team’s claims are at once audacious and desperate. It’s hard to know whether they represent a bold power grab, or a panicked response to an investigation that is closing in. I suspect the answer is a combination of the two. If Trump is guilty of serious crimes, and Mueller knows it, then Trump’s future hinges on destroying the mechanisms by which a president could be held accountable, even if it means destroying America’s constitutional order.
Whatever Trump does, most Republicans will probably go along with it. In 500 days, Trump has managed to turn much of what remains of his party into an authoritarian cult. Among Republicans, he has an 87 percent approval rating; the only modern Republican president who was more popular with his own party at this point in his term was George W. Bush, and that was mere months after Sept. 11. A recent poll of voters in congressional swing districts found that 71 percent of Republicans “mostly like” Trump’s handling of F.B.I. and criminal justice officials.
Trump has proved, again and again, that he can make his base discard their values out of loyalty to him. He’s gotten conservatives to anathematize the F.B.I. while cheering unilateral concessions to North Korea. He’s rallying Fox News behind the disgraced former Democratic Illinois governor Rod Blagojevich, whose prison sentence he is considering commuting in order to send a message that systematic government corruption isn’t a big deal.
Scriber thinks this is what is behind it all:
Assuming Giuliani was not simply babbling incoherently, his outlandish hypothetical about shooting Comey could be meant to acculturate Americans to a maximalist version of presidential power. …
And “saying that as long as he’s in office, a president can kill his enemies with impunity” has to be the scariest of the scary tweets and legal assertions coming from a White House besmirched by this despicable president.
All the pardons, most without merit or review, and talk of more pardons is preparation for the bigger act of Trump issuing blanket pardons to himself and his coconspirators in the Russian interference in our election.
What’s to stop him?
The title and subtitle of Goldberg’s column says it all: “Does the Law Apply to Donald Trump? His lawyers say no and Republicans don’t care.”
So Congress will not act even in the face of a frontal assault on our democracy. Leaders of the authoritarian cult called the GOP will themselves thereby become complicit in the obstruction of justice.
Graphic courtesy of David Gordon in [Governing like We are Still in the 1920’s][gordon].