Trump Isn’t Above the Law

(Bloomberg Opinion) -- Josh Chafetz, the author of “Congress’s Constitution,” made an important point about the possibility that President Donald Trump may declare an emergency at the border so he can build his wall even without Congress appropriating money for it. Chafetz correctly sees such a declaration as a form of retreat, rather than an extra-constitutional power grab.

He’s certainly correct that if Trump follows through, he wouldn’t be conjuring up new powers out of thin air. Andrew Rudalevige wrote about this last week: Trump would be claiming authority under a law passed by Congress long ago. Whether he’d be doing so legitimately would be for the courts to decide. Or Congress could pass new legislation – if necessary, over the president’s veto – to clarify that the law doesn’t apply the way that Trump would be claiming it does. 

But here’s the thing: We expect presidents to push against the boundaries of their legal authority. In normal times, that’s a perfectly healthy aspect of the U.S. political system. Alexander Hamilton talked about the importance of “energy in the executive,” and James Madison wanted ambition to counter ambition. The system is supposed to thrive on politicians trying to become more powerful. If anything – and again, in normal times with a normal president – the real culprit here would be Congress for delegating its powers and then having a tantrum (rather than doing something) when a president uses what they’ve given away.

Except Trump is no normal president. His constant disregard for the rule of law is impossible to ignore. It makes his attempts to exploit the presidency inextricable from his larger assault on the republic. Look at just this weekend. He once again attacked the independence of the Justice Department; he sought as usual to undermine the independent press; he continued using ethnic slurs against his political opponents; and he attempted to obstruct justice by intimidating a witness. All these acts are violations of his oath of office. And that’s not even counting his continued flouting of the emoluments clause of the Constitution, his serious violations of campaign-finance laws, and on and on. 

The parallels to Richard Nixon are as obvious as they are sad. What eventually cost Nixon his presidency wasn’t a specific crime – he wasn’t the first president to break the law in some way. Nor was it Nixon’s hunger for power. What made it necessary to remove him from office, so necessary that eventually his own political allies agreed, was that he acted as if he was above the law. Once a president’s contempt for the rule of law becomes obvious, everything he or she does must be seen in that context. And so what would otherwise be a normal case of testing the boundaries of authority becomes, to everyone watching, an act fraught with danger. 

It matters that Trump can’t be bothered to pretend that what he’s doing is normal. He forgets the pretext he’s claiming for the emergency as often as not, and sometimes says it’s just for electoral reasons. Lots of things politicians do are to help them politically, but there are good reasons why they’re not supposed to say so. Pretending that the substance matters allows citizens to believe that there’s more to politics than just us against them, and believing that makes it true to a large extent. When politicians feel obligated to come up with sensible-sounding justifications for their policies, it actually does serve as a constraint on their actions. That Trump almost never manages to do this is, again, a violation of his oath of office. And it’s partly why the talk of impeachment and removal isn’t going to go away.

1. William Adler at A House Divided on the history of the Army Corps of Engineers.

2. It’s really not good that James Goldgeier at the Monkey Cage keeps having to update his item about notes on Trump’s meetings with Vladimir Putin, but here we are.

3. Representative Bill Pascrell Jr. on congressional capacity. He’s correct: Republicans eroded it, but Democrats didn’t do much about the problem the last time they had the majority. Very good to see real signs of interest in rebuilding Congress from House Democrats.

4. Asha Rangappa on the FBI and investigating the president as a national-security threat.

5. Benjamin Wittes on the counterintelligence investigation into Trump.

6. Ariel Edwards-Levy on all the latest shutdown polls

7. And an excellent column from Philip Klein on Trump using emergency powers.

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Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

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