Trump’s Dream of Unrestrained Powers Won’t Come True

(Bloomberg Opinion) -- Two memos from Donald Trump’s lawyers to Special Counsel Robert Mueller that assert broad presidential privileges, and a tweet from the president claiming that he could pardon himself, provide the case for an entirely unconstrained presidency. That’s not the whole story. 

1. Presidents -- and especially  their lawyers -- can claim anything they want, but that doesn’t make those claims true. Trump isn’t the first commander in chief who wanted to stretch the office far beyond what the Framers intended or the plain text of the Constitution can support. And his lawyers aren’t the first to make improbable cases about the presidency to prosecutors.  

2. Even so, the claims of Trump and his lawyers are extraordinary. Presidents can obstruct justice: If they really could demand criminal investigations whenever they wanted, and shut down investigations whenever they wanted, they would truly be above the law even without the pardon power. The definition of what is legal would depend on what the president wanted at the moment, not on the bills he or she signed. 

3. Fortunately, it’s unlikely that Mueller will back down, or that the courts, should they be called upon to intervene, would back the extreme assertions in these memos, which showed up in the New York Times on June 2. Richard Nixon’s much weaker claims were shot down by the Supreme Court. It’s possible (but not certain) that today’s more partisan justices could be more inclined to protect a Republican president, but they probably wouldn’t go nearly as far as the memos want.

4. That said: It’s hardly reassuring that it’s only unlikely that Republican courts would give a Republican president unfettered powers.

5. As for the idea Trump could pardon himself? Again, he can claim it all he wants, but that doesn’t make it true, as my Bloomberg Opinion colleague Noah Feldman argues.

6. The notion the president can derail an investigation of his actions through the use of the pardon is overstated. The political scientist Matt Glassman had a good analysis on Twitter on Monday, pointing out that pardoned henchmen lose the protection of the Fifth Amendment. He concluded -- as Nixon did in 1972 -- that “ the best place for a corrupt POTUS to be positioned is in a spot where he’s dangling the *prospect* of pardons at people such that they don’t talk, without ever having to get in the game of actually issuing the pardons and dealing with the ramifications.”

7. And those who are certain that Republicans in Congress would never react to obvious abuses of power by a president of their party may be mistaken. We can’t really predict the reaction to a previously unthinkable act. Remember that in spring 1973 most congressional Republicans stuck with Nixon even when huge evidence of Watergate-related abuses of power came to light. They stuck with him in summer 1973 when the former White House counsel recounted conversations in which Nixon directly and personally obstructed justice. They stuck with Nixon in fall 1973 when he fired Special Prosecutor Archibald Cox (once the president agreed to a new special prosecutor). And most Republicans stuck with him through the House Judiciary Committee’s adoption of articles of impeachment in summer 1974, though they deserted him when additional evidence came to light days after those votes. 

8. Still, we’re not in a Nixon August 1974 situation where the evidence demands impeachment and removal. Yes, the president’s claims of innocence don’t square with what is already known. His campaign had many contacts with the Russians. His actions almost certainly constituted at least “light” obstruction of justice, and his repeated complaints that his attorney general won’t squash the investigation confirms that. But that still puts us in the gray area where impeachment and removal may be justified, but don’t appear to be necessary -- so that reasonable people (and hard partisans) can and will disagree. 

9. Similarly, presidential privilege claims, no matter how outrageous or specious, don’t amount to a constitutional crisis. Reaching that level would require the president to defy the courts once those claims are shot down, and we haven’t even reached the point of anyone asking the courts to intervene. 

10. At the same time: Yes, it’s important to push back against Trump’s claims of absolute power, and his shocking disregard for the law. And everyone -- members of Congress, journalists, citizens -- should be ready in case the president goes beyond claiming extraordinary powers to actually trying to use them. 

To contact the editor responsible for this story: Max Berley at mberley@bloomberg.net

©2018 Bloomberg L.P.