Donald Trump’s unprecedented and deeply suspicious decision to hide the details of his face-to-face meeting with Russian President Vladimir Putin even from his own people presents an interesting thought exercise about the limits of the modern U.S. presidency.
Is he under any obligation, as the leader of the executive branch, to at least inform some other members of the executive branch of what he is doing?
Or is he, as the human embodiment of the executive branch, entitled to take official acts secretly and alone, even if they are potentially against the interests of the United States?
That second option may sound absurd, but it is reflective of the radical constitutional philosophy that has infected the political right (thank Dick Cheney for that) which holds that Article II of the constitution vests “all” executive power in the president himself – not the office, or the executive branch generally.
It’s called the “unitary executive” theory. It requires a pinched interpretation of Article I, which gives Congress its powers. And despite its overlap with “originalism” – which conservatives use to block laws that reflect more enlightened views of the world than those held by white male slaveowners of the late 1700s – it has no basis whatsoever in what the Founders thought. The president was just a “presider” to them. They gave Congress so much power that Alexander Hamilton and others worried that it had too much, not the presidency.
So folks like Trump-appointed Supreme Court Justice Brett Kavanaugh, writing in a 1998 law journal article, actually believe things like: “The President is not simply another individual. He is unique. He is the embodiment of the federal government and the head of a political party.”
Trump’s pick to be his next attorney general, William Barr, is considered to be an outlier even among the unitary executive crowd. So, for instance, In a memo this past June, Barr agued that any “facially lawful” act by the president — like firing or pardoning someone — cannot constitute obstruction of justice.
You and I might think that our constitutional system is full of checks and balances, and that the president is not above the law. But the unitary-ans believe that Congress has exactly one recourse when it feels the president has gone too far in the exercise of his executive power, and that is impeachment.
Not telling his senior-most officials what he’s doing is, in some ways, not so different from changing his mind without letting them know. As NYU media critic Jay Rosen has been arguing for a while now, “There is no White House, really. Not in the sense that the term has been traditionally used. There’s just Trump and people who work in the building.”
But is the president the alpha and omega of executive power? Or do we have a reasonable expectation that, to some degree, it is a group activity?