Donald Trump's Constitution

Donald Trump's Constitution

The multiple opportunities for the abuse of executive power

June 13, 2016

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This article will appear in the Summer 2016 issue of The American Prospect. Subscribe here.

In 1952, contemplating Dwight D. Eisenhower as the next president, Harry Truman famously remarked, “He'll sit there and he'll say ‘Do this! Do that!’ and nothing will happen. Poor Ike—it won't be a bit like the army.” The comment reflected President Truman’s frustration with a balky bureaucracy and rival political power centers.

Since Truman, the presidency has only grown stronger. We’ve had three bouts of serious presidential overreach under Lyndon Johnson, Richard Nixon, and the George W. Bush-Dick Cheney regime, and some nasty forays under Ronald Reagan. In each case, democracy recoiled and recovered, yet the imperial presidency keeps expanding.

In his prescient 2010 book, The Decline and Fall of the American Republic, Yale law professor Bruce Ackerman warned of what he called the “structural extremism” of the modern presidency, which invited “presidential lawlessness.” He urged his readers not to be reassured by Barack Obama’s moderation after Bush and Cheney. He added, eerily, “The next insurgent president may not possess the same sense of constitutional restraint.”

Donald Trump was nowhere on the political horizon when Ackerman wrote. But burgeoning executive power was a Constitutional catastrophe waiting to happen—awaiting the right political moment and the right Caesarist leader.

An imperial presidency is only half of the story. As the executive branch has grown stronger, countervailing democracy has grown weaker. Faith in government has declined, as has voting participation. Republicans have deliberately curtailed the right to vote. The Supreme Court has never been more partisan. All our institutions of government have lost legitimacy, even the courts and the military, not to mention Congress.

Paradoxically, in a period of bitter partisan divide, separation of powers has worked all too well. Despite the immense power of the presidency, government has been stymied in the face of pressing national problems, deepening popular loss of confidence in democracy itself. The cynical Republican strategy of blockage has strengthened the Republican story that government is a hopeless mess.

All of this set the stage for Donald Trump as candidate. But what would he do as president?

(Photo: AP/Keith Srakocic)

Republican presidential candidate Donald Trump speaks in front of his jet during a campaign rally on June 11, at a private hanger at the Greater Pittsburgh International Airport in Moon, Pennsylvania.

TRUMP HAS ALREADY SENT alarming signals. He would punish the press. He would find ways to settle scores with judges. He would use the power of mobs to intimidate opponents. He would attack the business interests of critics. All of this points to a personalist presidency, contemptuous of constitutional restraints.

Some of the commentary on the limits of a President Trump’s power has been surprisingly sanguine. University of Chicago law professor Eric Posner, in an October 23, 2015, Slate op-ed, summarized—and largely dismissed—charges of executive excess going back to George Washington. Posner concluded:

[T]he U.S. political system has not produced any dictators, ever; at some point, our own experience needs to trump [sic!] fears based on events in foreign countries and the distant past. Economic stagnation, foreign threats, and environmental degradation have created anxious times, and in times of anxiety people look to the government. The real source of anxiety is not presidential aggrandizement—that’s the solution [emphasis added]. The real source of anxiety is the inability of an even very powerful president to solve any of these problems.

This seems profoundly wrong when one imagines a President Trump. Many people, in fact, are not looking to government; they are disgusted with government. Hence the appeal of a Caesar.

The New York Times, in a May 21 news feature, was also blasé. Writer Nelson Schwartz observed that many of Trump’s proposals, from massively cutting taxes to repealing the Affordable Care Act, would take legislation: “However stupendous Mr. Trump’s deal-making skills may be, the forces of gridlock in the nation’s capital are no less awesome.”

Gridlock, however, is legislative. A look at the executive tactics available to a Trump suggests the potential for mischief. The Constitution is only a document. It has survived despite bouts of excess because even our most reckless leaders have respected its basic norms. Nixon, Johnson, and Cheney were paragons of constitutional restraint compared with Donald Trump.

 

MIX THE WORST EXCESSES under Nixon et al., throw in J. Edgar Hoover and the Red Squads, Southern sheriffs winking at mobs, add the digitized national-security state, blend with Trump’s own personal malice, and you get a sense of the brew. Here are some particulars.

Absolute Loyalty to the Boss. Senate Majority Leader Mitch McConnell, trying to limit the damage of Trump’s attack on Judge Gonzalo Curiel, explained that Trump would be constrained by the White House counsel. But dictators surround themselves with loyalists. Business tycoons famously look for lawyers to rationalize doing what they want, not to tell them why they can’t do it. Cheney and Bush got legal cover to justify warrantless surveillance and torture, both clearly prohibited by law, from a toadying Office of Legal Counsel, with preposterous opinions by Jay Bybee and John Yoo. Trump’s counsels would be even more supine—or they’d be fired. His lawyers would be about as independent as Vladimir Putin’s.

Each of the recent hubristic presidencies still had rival power centers as sources of restraint. Lyndon Johnson, despite his role as commander in chief and overwhelming mandate in the 1964 election, had the Fulbright hearings to reckon with. By 1967, his own defense secretary, Robert McNamara, was challenging his escalation of the Vietnam War; by 1968, Johnson abdicated, wracked by self-doubt. Does Trump do self- doubt?

Nixon created his own “Plumbers” unit because he could not get the FBI and CIA to do his bidding. The FBI was appalled by Nixon, and was leaking to The Washington Post. Though he fired special prosecutor Archibald Cox, Nixon submitted to the authority of the courts and Congress. Once the White House tapes were disclosed, he meekly turned them over. Such was the outcry over the 18-minute gap in one tape that Nixon never again tried destroying evidence. What would Trump do in such circumstances?

Partisan Control of all Three Branches. Much of the Watergate scandal was exposed by congressional hearings armed with subpoenas. Under Reagan, likewise, a Democratic Congress helped unearth the Iran-Contra affair. But if Trump wins the election, he would almost surely have a Republican Congress—plus at least two appointees to the Supreme Court.

(Photo: Wikimedia Commons/Jack E. Kightlinger)

Richard M. Nixon at a press conference releasing the transcripts of the White House tapes

The ease with which the Republican establishment endorsed Trump suggests that Republicans would be mainly his enablers. There would be legislative battles over the budget, tax policy, the Affordable Care Act, and so on—but virtually no congressional investigation of executive excess. Republicans have already been all too willing to sacrifice democracy in pursuit of partisan and ideological goals.

ICE as a Gestapo for the Foreign-Born. Most of the overreach that undid recent presidents was lawless. Cheney and Bush broke the law in their moves to expand NSA spying. Nixon illegally created the Plumbers unit, and doubled down with the cover-up. Much of Trump’s likely excess would be lawful. Consider U.S. Immigration and Customs Enforcement (ICE).

A president has immense discretion over how to enforce immigration laws. A President Trump could direct immigration officials not just to bar foreign Muslims as security risks, but to aggressively deport undocumented migrants living here. He could also go after authorized immigrants and even citizens who seek to protect their families, for the felony of committing conspiracy to harbor illegal aliens.

Even under Obama, detention and expedited deportation policies have violated norms of due process, but the courts have not intervened. If Trump’s goal is to demonize immigrants, especially Hispanics and Muslims, and to destroy their communities, he would not have to break the law to do it.

Politicizing the IRS. In 1973, Nixon clumsily attempted to use the Internal Revenue Service to punish political adversaries on his famous Enemies List. He ran into the professionalism of three successive Republican IRS commissioners, Randolph Thrower, Johnnie Walters, and Donald Alexander, who refused to bend. I know this story well because it was the subject of my first investigative piece for a national magazine (“The Taxing Trials of IRS,” The New York Times Magazine, 1974). The system held, and Nixon backed off. His effort to misuse the IRS became one of the high crimes in the Articles of Impeachment.

Trump would not make the same mistake. The IRS has immense discretionary power over whom to audit. It would take a brave IRS commissioner to resist a call from the White House, and Trump’s commissioner would be a faithful crony.

The IRS could also go after 501(c)3 groups. There was a scandal in 2013, when mid-level IRS officials used heavy-handed criteria in reviewing applications for tax-exempt status. The career official in charge of the tax-exempt office, Lois Lerner, was forced to take early retirement.

These missteps, however, were bureaucratic. A Trump IRS commissioner bent on destroying progressive groups could revise the standards on what counts as impermissible political activity. Much of the American progressive movement is organized as 501(c)3 groups (which may not engage in politics) in order to receive tax-deductible grants and gifts.

The IRS, as a politicized hit squad, could also intimidate the foundations that finance progressive infrastructure and threaten their tax-exempt status. The IRS could even-handedly go after right-wing nonprofits. Their tax-exempt status matters less, because the far right has so much more money that its donors don’t need the tax deductions. This would be another perfectly legal witch-hunt.

Under Reagan, right-wing groups sponsored a strategy called Defund the Left. The idea was to deny progressive groups direct and indirect support from government. The Reagan administration partly succeeded in killing grants from agencies such as the Environmental Protection Agency and anti-poverty programs that sometimes went to advocacy groups; and the right’s demonizing of “trial lawyers” drastically cut back class-action suits. But if you search “de-fund the left” you will find articles in conservative journals expressing disappointment that the tactic did not realize its promise. Trump could easily pick up where Reagan left off—perfectly legal. Consider the Republican effort to de-fund Planned Parenthood, times ten.

Prosecutorial Discretion. The use of selective prosecutions to insulate allies and punish enemies has grown in recent years. As Alex MacGillis recounted in a brilliant piece for The New Republic, Chris Christie, while U.S. attorney for New Jersey, built his power base in a famously corrupt state by selectively prosecuting enemies and sparing corrupt players whom he was courting as allies. Selective criminal prosecution has been endemic in the financial collapse. Prosecutors targeted a few small fry but never the top executives, whose fraudulent strategies crashed the economy.

(Photo: AP/Steve Helber)

Supporters of Donald Trump applaud the singing of the National Anthem during a rally in Richmond, Virginia, on June 10.

Before the suicide of internet activist and programming prodigy Aaron Swartz, who improperly downloaded millions of articles from the academic database JSTOR, prosecutors threw the book at him. As Emily Bazelon has pointed out, they sought to use his case to scare other hackers, charging Swartz with violation of the notoriously broad Computer Fraud and Abuse Act, which provides prison terms of up to 35 years. Imagine how a Trump Justice Department on a fishing expedition might use that law.

Presidential Regulatory and Executive Power. There was a time when executive branch commissions were known as “independent regulatory agencies.” But more and more, these have been brought under the White House control. Since Reagan, the issuance of regulations by quasi-independent agencies such as the EPA and the Food and Drug Administration has required the review and approval of a little-known White House agency, the Office of Information and Regulatory Affairs. OIRA has the power to stop regulations cold.

Trump has promised to repeal the Dodd-Frank Act. That would take an act of Congress, but would not be necessary. He’d need only to appoint stooges to several key Treasury positions, or repeal existing regulations and not write new ones. The same is true of a broad swath of environmental, civil-rights, and labor regulation, not to mention rights of immigrants.

Recent executive actions have belatedly enforced worker rights, such as overtime pay and increased protections against wage theft. The Labor Department has moved to protect collective-bargaining rights. All this could be swept away. Simply denying funding to the Bureau of Labor Statistics, the source of much of the raw data documenting income inequality, would undermine much of that debate. If you want to deny climate change, just de-fund the science—or put the deniers in charge.

Trump and the Labor Movement. Presumably, Trump would use his Labor Department to further weaken the trade union movement, a mainstay of progressive Democratic politics. Labor is very vulnerable. Only the timely death of Justice Antonin Scalia spared public-employee unions from a near certain ruling undercutting their ability to collect dues.

But Trump would likely be craftier than that. As one senior labor leader points out, fascist and quasi-fascist leaders engage labor with a mix of repression and co-optation. Trump has courted working-class voters with tough talk on trade. He has also spoken of the need to rebuild decaying infrastructure. Trump could reach out to such relatively conservative unions as police, fire, and building trades with a blend of carrots and sticks. He could try to enlist industrial unions such as the Steelworkers and the United Auto Workers that are most threatened by trade, and ask for their explicit support. Then he could concentrate his fire on left unions like the Service Employees International Union, which has a heavily black and Latino membership. His white working-class bona fides would be strengthened—and the labor movement’s alliance with the Democratic Party sundered.

The Use of Mobs. Fascist movements and leaders rely on the intimidating power of mobs. Trump has given us a preview of his taste for these tactics by egging on thugs at his rallies to beat up protesters. For the most part, we’ve avoided this in the U.S., exceptions being the use by Southern racist sheriffs of “deputies” and lynch mobs to help intimidate and murder blacks, and the Wilson administration’s use of vigilantes against pacifists during World War I. One recent exception was the white-collar mob of congressional staffers hastily organized by the George W. Bush campaign to descend on Florida and create a phony mass movement to dissuade local election officials from recounts. A Trump presidency would not be shy about enlisting the worst (armed) bullies in America to intimidate opponents and to create incidents that would then require intervention of police.

National Security Emergencies and Subversives. Sooner or later, there will be another terrorist attack. The Snowden revelations disclosed the reach of our burgeoning surveillance state. After the attacks of September 11, the USA Patriot Act, a grab bag of accumulated wish lists by cops, spy agencies, and prosecutors seeking shortcuts, was rushed through Congress with hardly any scrutiny or dissent. It is not hard to imagine Trump using the next national-security crisis (or creating it) to intensify invasions of privacy.

A Trump administration could seek—and get—new emergency powers. Those in turn would make it easier for the government to round up those deemed security risks, for speech for as well as for acts. Anyone a few degrees of separation from a foreigner deemed a possible terrorist would be fair game. The NSA knows just about anything it wants to know. It has been guilty of abuses, but they are minor compared with what is technically possible.

Playing Favorites and Enemies with the Press. Watergate intervened before Nixon could fully implement the strategy of using the power of government to harass and destroy enemies. When informed of what The Washington Post had on him, then-Attorney General John Mitchell warned—on the record—that publisher “Katie Graham is going to get her tit caught in a wringer.” But Mitchell himself was in jail before he could deliver. Trump’s threats against the Post suggest how he could proceed. It’s not hard to imagine Trump directing his Federal Trade Commission chair or antitrust chief to create problems for current Post publisher (and Amazon chief) Jeff Bezos.

Trump could easily pick favorites and deny access to media considered unfriendly. Even in the era of Watergate and the Pentagon Papers, the Post and The New York Times had full press privileges. But these are unwritten norms, not constitutional guarantees.

Trump as Commander in Chief. The president also heads the armed forces. He has the power to federalize the national guard. He can send Americans into combat.

 

WE ARE ALREADY CLOSE to an Orwellian state of quasi-permanent warfare.  The War on Terror, the Patriot Act, and the surveillance state have become all too bipartisan and normal.

America has been very lucky that three of our greatest wartime presidents were paragons of restraint. George Washington could have been king, but he chose to cast his lot with a republic, to put a broad spectrum of Federalists and anti-Federalists into his cabinet, and to step down after two terms. There were calls for Franklin Roosevelt to assume dictatorial authority, but for the most part he did not ask for or use emergency powers. His appalling decision to round up loyal Japanese Americans into concentration camps was the exception. Lincoln, as Doris Kearns Goodwin wrote, deliberately named rivals to his cabinet, who served as checks on his own predispositions. He implemented emergency wartime measures, such as suspension of habeas corpus, sparingly and with reluctance. Trump would use emergency powers to excess and with relish.

The founders of our republic devised a complex system of checks and balances as a bulwark against tyranny. But much of our liberty depends on the internalized constitutions of our leaders, their respect for democratic norms and their sense of restraint. When that falters, the latent power of the other two branches of government kicks in—but sometimes it doesn’t. A Trump presidency would likely display neither the self-restraint of a Lincoln or a Roosevelt, nor the institutional checks and balances that ultimately brought down Nixon.

America under Trump would have much in common with illiberal, nominal democracies such as Russia, Hungary, or Turkey, where critics are intimidated, an opposition press scarcely exists, civil society is eroded, and elections are rigged to assure that the opposition never gets to govern. It’s no coincidence that Trump admires Putin.

At a time of broad disaffection, do enough of our citizens grasp these risks? We’ll find out all too soon.

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