Can a president keep official actions secret even from his own staff?


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?

‘National emergency’ sounds scary, doesn’t it?

Donald Trump has done very well for himself by sowing fear. Nothing, it turns out, motivates voters more.

And that’s why, I suspect, he is hesitating to declare a “national emergency” to build his border wall.

Our nation’s political and legal elites recognize that declaring a “national emergency” as defined by the National Emergencies Act of 1976 has never been a big deal before: presidents routinely declare them under very specific circumstances, to unlock very specific authorities. Trump has already declared three, all of them blocking the property or imposing sanctions on officials in Nicaragua, Russia and a variety of other countries. There are a total of 32 currently active, according to a great chart by CNN.

“What Congress is really doing here is saying ‘here are special authorities for special cases’,” University of Texas law professor Steve Vladeck said in a conference call organized by the American Constitution Society on Friday.

But Trump, who is savvy about working a crowd, must realize that to ordinary people the term national emergency in a big headline conjures up much scarier images. I’m betting it polls real badly, too.

“When people hear ‘national emergency,’ they think martial law. They think crisis. They think all sorts of horrible things,” Vladeck said.

So where “build the wall” is dog-whistle for “stop brown people from ruining America” for Trump’s base, declaring a much-publicized “national emergency” could well be the spark that sends ordinary people into the streets, panicked about an unhinged president taking the law into his own hands.

For whatever reason, it’s obvious that Trump is conflicted about what to do. His comments about declaring a national emergency have been labored even by his standards.

So, for instance, he told a gaggle of reporters Thursday afternoon: “I have the absolute right to declare a national emergency. I haven’t done it yet. I may do it. If this doesn’t work out, probably I will do it. I would almost say definitely.”

Then he told Sean Hannity a few hours later: “Now if we don’t make a deal with Congress, most likely I will do that. I would actually say I would. I can’t imagine any reason why not because I’m allowed to do it.”

On Friday afternoon, he said at the White House: “The easy solution is for me to call a national emergency. I could do that very quickly. I have the absolute right to do it. But I’m not going to do it so fast because this is something Congress should do.”

Moments later: “What we’re not looking to do right now is national emergency.”

Then he said if House Speaker Nancy Pelosi and Senator Minority Leader Chuck Schumer simply tell him they aren’t going to fund a wall – which they have, several times – that would be a trigger: “And if they can’t do it – if they yell that we can’t do it, ‘there’s no way we can vote for security, there’s no way we can vote for security,’ all Nancy and Chuck have to do is tell me and you know what? We’ll start thinking about another alternative.”

Then moments later, again: “Congress should do this. It they can’t do it, I will declare a national emergency”

Practically speaking, while there is nothing preventing Trump from unilaterally declaring any number of national emergencies, that does not mean he can simply do whatever he wants afterward.

As the Brennan Center’s Liza Goitein explained in an article in the Atlantic that I called attention to last week (because parts of it are quite scary) there are 136 special provisions that become available in different kinds of national emergencies — but they are all very specific and none allow for martial law.

There are two provisions in particular that Trump might use to justify ordering the military to build the wall — 10 USC 2808 and 33 USC 2293 – but even they have such specific requirements that any use of them would inevitably lead to forceful legal challenges.

And while neither the Constitution nor Congress have ever defined what a “national emergency” is – and the courts are notably deferential to the president’s commander-in-chief authorities – presumably some members of the judiciary would be willing to rule that it’s not a “national emergency” just because Congress refuses to go along with the president.

Some universal truths about Donald Trump that bear repeating (over and over again)

Meeting with congressional leadership January 4 in the Situation Room. (White House Photo)
While reading this morning’s crop of news and opinion, it struck me that there are several good examples here of stories that identify universal truths about Trump that are too often left out of the daily coverage.

Here is a (necessarily abbreviated) list of things about Trump that I think are essential context for any story about him. And not just fact-checks or think pieces! Because how can readers possibly be expected to understand what is going on otherwise?

Stop asking Democrats about impeachment. Start hounding Republicans instead.

Billionaire Tom Steyer announced on Wednesday that he will underwrite town halls, teach-ins and a summit on impeaching Trump.
Billionaire Tom Steyer announced on Wednesday that he will underwrite town halls, teach-ins and a summit on impeaching Trump. (Facebook photo)

The impeachment of Donald Trump is a distinct possibility, worth considerable media attention. In fact, organizing all the coverage of the Trump presidency around the question of impeachability is arguably the best way to avoid normalizing it.

But some of the lamest political journalism these days consists of reporters self-importantly grilling Democratic leaders about whether impeachment is on the table or not.

Of course it’s on the table.

That’s not the interesting part.

The interesting part is why it’s not happening yet.

And while a significant subset of Democrats believe that impeachment proceedings are already overdue, there are two things to keep in mind:

1. Members of the Democratic leadership have consistently made it clear that they will wait until the move to impeach is bipartisan (and/or special counsel Robert Mueller’s finding include such astonishing lawlessness that they feel they have no choice); and

2. Impeachment in the House doesn’t get rid of Trump. You need two thirds of the Senate to remove him – which means a significant number of Republican votes.

So if journalists want to cover the drama of impeachment – and they should – the people they should be hounding for answers (on the Sunday morning shows, on the CNN panels, in the Capitol hallways, etc.) are Republican members of Congress.

How do they reconcile Trump’s behavior with the country’s need for honest, predictable leadership? How is indefinitely shutting down the government in line with a president’s obligations under the Constitution? How is Trump’s company making money from foreign governments not an unconstitutional emolument? How much corruption is simply too much? Are they good with an unindicted co-conspirator in a criminal campaign-finance violation being president? How is [whatever Trump has just done] not an impeachable offense? What do they consider obstruction of justice? What do they think is impeachable?

The point is that Trump has committed any number of what could reasonably be considered impeachable offenses. So what needs to change is for at least some Republican to publicly acknowledge that.

The Democratic House will pursue oversight that may amount to a de facto impeachment inquiry, undoubtedly finding out more unsavory things about the Trump presidency. The Mueller investigation will at some point become less opaque.

So at what point will a significant number of non-suicidal Republicans break ranks from Trump and disown his profound dishonesty, corruption and contempt for the law?

That’s the exciting and important question. Start asking it now, and don’t stop.