In early June, the New York Times reported a 20-page memo written by Donald Trump’s legal team and delivered to Special Counsel Robert Mueller. In it, they make an unusually frank case for a tyrannical interpretation of presidential power. Its key passage is one where Trump’s lawyers argue that there wasn’t anything shady going on when their client fired then FBI Director James Comey. In fact, there isn’t even any potential shenanigans going on because the president is allowed to be as shady as he wants to be while overseeing federal law enforcement. Thus, he can fire anyone he wants as well as shut down the investigation or open up a new one. As they wrote:
“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.”
Essentially all presidents sooner or later will lawyer up to draw up an expansive view of presidential power. But those lawyers usually argue that they’re not making the case for a totally unchecked executive whose existence poses a fundamental threat to American values. But Donald Trump isn’t that kind of president. Instead, they offer a particularly extreme version of the “unitary executive” doctrine that conservative scholars sometimes appeal to especially when there’s a Republican president. This draws upon the notion that the government’s executive branch, including federal police agencies and federal prosecutors are a single entity personified by the president. However, pushing this logic into such terrain not only gives Trump free rein to persecute his enemies which are many, but also nullify the idea there are any enforceable laws at all.
Of course, Richard Nixon once argued that whatever the president does isn’t illegal which is similar to Donald Trump’s legal defense, making him guilty as sin in the Russian meddling case. However, the United States was built on the very concept that nobody is above the law no matter how powerful that person may be, especially the president which is embedded in the US Constitution. So considering what happened at Watergate, I don’t think this defense will fly because that’s just contrary to American values. Yet, such decision isn’t up to me to decide. Furthermore, Trump has always thought himself above the law even before he was president or at least that the laws don’t apply to him. Call it a rich man’s entitlement, but his rationale has nothing to do with the job he currently occupies.
But should the courts think this memo correct, then there would be nothing wrong with Donald Trump setting up a booth somewhere in Washington DC where rich people can hand him checks in exchange for making any legal trouble they have go away. Think of it as a “Trump Hotel” where corrupt CEOs can check in a room with the legal impunity which has plenty of disturbingly unfortunate implications for the American people. Once Trump cuts these rich guys a check, they’ll have free rein to commit bank fraud, dump toxic waste, or whatever else they want to do at poorer Americans’ expense. A mob boss can get the feds off his case. And so could the perps of the next Enron fraud or whatever else. Since Washington DC’s criminal laws all fall under federal jurisdiction, perhaps most egregiously, Trump could have his staff murder the opposition party senators or inconvenient judges and subsequently block any investigation into what’s happening. Sounds despotic?
Of course, the memo notes to an extent that this kind of power to undermine the rule of law already exists with essentially unlimited pardon power. Such power has never been a good idea which has been abused in the past. George H.W. Bush used it to kill the Iran Contra investigation. Bill Clinton used it to win his wife votes in a New York Senate race. Donald Trump has started using the pardon power abusively and capriciously early in his time in office and in a way that’s quite disturbing. But he has yet to try to pardon his way out of the Russian investigation because this power has one crucial check. That the president has to do it in public and we know Trump doesn’t want to arouse suspicion. Thus, the only limit on his pardon power is a political check which is quite real (explaining why Clinton and George H. did their questionable pardons as lame ducks). Not to mention the theory that Trump can simply make whole investigations disappear would eliminate it.
Nonetheless, much of the argument about Donald Trump and the rule of law rather narrowly pertains to the particular case of Comey’s firing and the potential future dismissal of Robert Mueller. Indeed, these are important questions in the sense that an FBI Director is an important person and a special counsel investigation is an important matter. Yet, the memo is a reminder that they offer too specific view can be easily explained. For one, Trump has always believed that due to his wealth and fame, he can and should be able to get away with whatever he wants. As he told Billy Bush in that bus “And when you’re a star, they let you do it. You can do anything.” Sure he said this in the context of assaulting women. But he’s also carried that philosophy in regards to running his businesses. Since his list of power abuses and unethical business practices is simply mindboggling and staggering. And I’m sure he sees himself above the law in regards to the presidency as well. Thus, looking at his life, Trump doesn’t see himself above the law because he’s president, but because he’s Trump.
But more importantly, one of government’s main purposes is protecting the weak from exploitation at the hands of the strong by making certain forms of misconduct illegal. Donald Trump’s assertion that he can simply waive away investigations into misconduct over worries that they may end badly for his rich friends and family is toxic to the entire scheme. Like most presidents, Trump has plenty of rich and powerful friends and a much longer list of wealthy and influential people who’d like to be his friends. At any rate, in the most unlikely scenario, if Trump really does have the power to make anyone’s legal troubles go away when he feels like it, we’re all in deep trouble.