Swollen and out of control; Comparing Donald Trump’s presidential powers to George H.W. Bush’s

George H.W. Bushs inauguration, 1989.
The extraordinary contrast between the 41st and 45th presidents extends beyond their diametric personal characteristics.

The office Donald Trump holds carries way more power — with far fewer checks and balances — than the one George H.W. Bush did.

Where Bush 41 was largely held to the conventions of the post-Nixon reform era, Trump is a creature of the post-9/11 era, wielding far-reaching unilateral powers and frequently flouting the rule of law.

“I would argue that the most important difference now as opposed to under Bush 41 is that the Watergate/Iran-Contra legacy is more distant and less robust,” American University law professor Chris Edelson told me via email.

It was Bush 41’s son, George W. Bush, who changed the presidential power dynamic the most. He used the 9/11 terror attacks as an excuse to clamp down on civil liberties and go to war in Iraq, adopting Vice President Dick Cheney’s radical “unitary executive theory” that a president’s Article II powers over the executive branch are absolute.

“That was a frontal assault on the rule of law and an explicit claim that the president can set aside the law in specific areas,” Edelson said.

Congress, rather than rebuke the president and assert its constitutional power, actually encouraged Bush’s power grab.

And Barack Obama, despite his campaign promises, embraced many of Bush’s expanded powers, such as the use of drones for targeted killings, bulk surveillance and indefinite detention.

“Trump has of course gone far beyond anything GW Bush or Obama — let alone Bush 41 — ever did,” Edelson said. “But he benefited from the post 9/11 expansion of presidential power, which in part helped to erode presidential accountability to the rule of law.”

Georgetown University law professor Victoria Nourse proposed another way to look at how the office has changed: by judging “how far a president has departed from settled norms about presidential power developed in the past.”

George H.W. Bush departed from at least one norm: He pardoned six defendants in the Iran-Contra scandal — including former Defense Secretary Caspar Weinberger, 12 days before he was set for trial. Special Counsel Lawrence Walsh concluded in his report that “The Weinberger pardon marked the first time a President ever pardoned someone in whose trial he might have been called as a witness, because the President was knowledgeable of factual events underlying the case.”

But Trump barrels through norms like they weren’t there.

“This president, unlike any other president since Andrew Johnson, has departed from those norms,” Nourse said. “He courts our enemies, like Russia and North Korea. He daily indicts the rule of law.  He gives the appearance of corruption and appears not to give a fig that a foreign power may have stolen our election.”

Bush 41 served during the end of the Cold War, when the perception of external threats was decreasing. But as Princeton University history professor Julian Zelizer told me, “the expansion of the counterterrorism program post 9/11 was like early Cold War in increasing the number tools the executive branch has to pursue its goals.”

Zelizer described two other factors that make the Trump presidency so powerful.

One is “the fragmentation and decentralization of information, as Trump has shown with Twitter,” which has dramatically increased the president’s ability to reach the public directly, without gatekeepers.

The other is political polarization. “When there is united partisan control in era of strong polarization, the president is insulated and protected from political attacks,” Zelizer said. “None of this makes a president invulnerable nor can they do anything they want. But 45 does enjoy many powers 41 did not have.”

The steady expansion of executive power has been particularly pronounced in the national security realm, American University law professor Jennifer Daskal said, “based in large part on ever-expanding understandings of the kinds of military actions that can be taken without congressional authorization, coupled with a broad relinquishment by Congress of its war-authorizing role.”

Modern presidents have entirely new ways of making war that Bush 41 didn’t, including drone strikes and cyberattacks that reduce the cost of engaging in conflict and don’t create the same complications as sending in troops.

Daskal does credit the courts with setting at least some of the limits that Congress refuses to. “There have been notable areas where the courts have pushed back, even in the area of national security, and even in the wake of the 9/11 attacks,” she said.

To say that Trump has expanded power does not mean that Bush 41 didn’t have plenty. As Zelizer put it, the presidency “is much more powerful today and it was already pretty powerful in 1989.”

George Washington University law professor Jonathan Turley pointed out, in an email, that Bush 41 “pursued an expansive policy on presidential power as did Reagan.”

Indeed, much as Reagan invaded Granada without congressional authorization – or even knowledge – Bush 41 did likewise with Panama.

“Bush Sr. was entirely a product of the executive branch and saw solutions largely in terms of executive power,” Turley said. “From his time as a combat pilot to the CIA to the vice presidency to the presidency, Bush identified with Article II as the thumping heart of the American government.”

The expansion of presidential power has been going on “uninterruptedly for decades,” Turley said, “to a point that it would be highly troubling for most framers who expressed reservations about the position in the tripartite system.”

Although that growth has indeed been uninterrupted, I think there is a strong argument to be made that 9/11 and Trump’s election are major inflection points. Bush 43’s response to the terror attacks dramatically expanded presidential power with nearly no resistance; Trump’s rise shows just how profoundly dangerous that is.

The Bush 43 and Obama approaches “amounted to a theory that presidents can be trusted with broad unilateral power in the area of national security, and that Congress is in many ways a junior partner at best,” Edelson said.

The obvious danger: “What happens if someone is president who cannot be trusted with this power?”

Now we are learning the answer.

Trump “has taken the precedent of expanded presidential power in new directions,” Edelson said.

Bush 43 and Obama “broke free of limits on power to advance what they saw as national security goals,” Edelson said. But by using the office for such things as undermining special counsel Robert Mueller’s investigation, challenging the press’s right to disagree with him, and personally enriching himself in office, Trump has done something different.

In a way Bush 41 could never have gotten away with, Trump has used the extraordinary power of the presidency to advance his personal goals and pursue a radically authoritarian agenda.

History shows that no American president has voluntarily relinquished power seized by his predecessor. The question then is whether Congress and the courts will force Trump — or his successor — to do so.

Is Donald Trump engaging in witness tampering? Mueller knows for sure.

Michael Cohen/IowaPolitics.com [CC BY-SA 2.0], via Wikimedia Commons
Donald Trump used Twitter this morning in classic mob-boss style, calling out two witnesses  – labeling one a soldier, the other a squealer.

Legal twitter wasted no time identifying it as apparent witness tampering.

But the only person who knows for sure right now is special counsel Robert Mueller.

Trump praised adviser Roger Stone for refusing to testify against him:

By contrast, he lashed out at his former lawyer, Michael Cohen, who has fingered Trump in at least one criminal violation of campaign finance law:

The most recent development with Cohen is that he pled guilty on Friday to lying to Congress on Trump’s behalf — and, quite possibly, according to a court filing late Friday, at Trump’s behest as well.

The filing said that even as Cohen was preparing his responses to congressional committees, he “remained in close and regular contact with White House-based staff and legal counsel to Client-1 [Trump].” So, basically, Cohen was saying he had been a soldier for Trump, but was done with that.

Back in August, Trump had similarly found Cohen lacking — compared to former campaign chair and soldier Paul Manafort:

The New York Times recently reported that Manafort’s legal team has repeatedly assured Trump’s that Manafort has not implicated Trump in any way.

If you take Trump at his word, then all he is doing is hailing truth-tellers and castigating liars. But if Mueller has solid evidence that it’s Stone and Manafort who are lying, and Cohen who is telling the truth, then how can this be anything other than witness tampering? (And wouldn’t Mueller call it out?)

Former Obama ethics czar Norm Eisen had no doubt:

Neither did attorney George Conway, who happens to be married to Trump confidante Kellyanne Conway:

Noted legal scholar Neal Katyal agreed:

Federal witness tampering is a crime; it’s one of many ways to criminally obstruct justice. And it’s also, as former Obama adviser Dan Pfeiffer put it, an abuse of power:

 

Impeachment watch: LA Times editorial board draws a line in the sand

Drawing a line in the sand (Lars Plougmann/Flickr)

Where do you draw the line on what is an impeachable offense? I suggested on Wednesday that members of Congress be pressed to draw their lines in the sand, publicly and unequivocally.

Newspaper editorial boards and opinion columnists could also help clarify things by saying what they think constitutes treason, bribery, or other high crimes and misdemeanors.

To its credit, the Los Angeles Times editorial board drew just such a line in the sand on Friday.

The Times called Trump’s statement that a pardon for his former campaign chairman Paul Manafort is “not off the table” an alarming escalation in his efforts to undermine the rule of law.

“If Trump is rash enough to actually grant a pardon to Manafort or to others who have been caught up in Mueller’s dragnet,” the TImes wrote, “that should immediately trigger an impeachment investigation by the House of Representatives.”

That’s considerably more specific – and meaningful – than most major editorial boards have gotten so far, from what I’ve seen.

In a landmark editorial in April, the New York Times drew a  red line — but didn’t explicitly call for impeachment if it were crossed.

The TImes editorial board advised lawmakers to be prepared for the possibility that Trump might fire special counsel Robert Mueller, “because if and when it comes to pass, they will suddenly find themselves on the edge of an abyss, with the Constitution in their hands.”

There were grave words about how “history will come calling ” and “it will be up to Congress to affirm the rule of law, the separation of powers and the American constitutional order.”

But the Times’s choice of euphemisms, rather than the word itself, was a head-scratcher. Did it mean the Times does not necessarily support impeachment in that circumstance? Or did the authors simply avoid the word because they were squeamish?

A few months later, the Times advised newly victorious House Democrats in November to “Avoid the ‘I’ word for now” [my italics]:

Impeachment is neither a sensible nor a winning issue to open with. Even many Americans who dislike Mr. Trump will, absent overwhelming evidence of impeachable offenses, balk at efforts to remove a sitting president.

The “for now” word choice might suggest that the Times thinks impeachment is an inevitability. But the conditions the Times set were vague, and came with a big loophole:

Democrats would do well to wait and see if the investigation by the special counsel, Robert Mueller, turns up high crimes and misdemeanors before deciding whether to pursue the painful and divisive path of impeachment. If so, they’ll want to bring along at least some of their Republican colleagues.

The Washington Post editorial board, responding to rumors in June 2017 that Trump wanted to fire Mueller, first went out of its way to register its distaste for the idea of impeachment, then allowed that there might be a case for it:

We have viewed much of the talk to date about impeachment as overheated. But firing Mr. Mueller would, more than anything else the president has done in office, firm up a case that Mr. Trump is obstructing justice.

In October 2017, the Post editorial board argued that there was no need for Congress to pass legislation to protect the special counsel, as:

If Congress feels that it would be unacceptable for the president to dismiss the special counsel investigating him, it can respond to such an act with a mechanism already available: impeachment.

Not exactly a ringing endorsement.

The USA Today editorial board called on Congress to censure Trump after he asserted there were “very fine people” among the bigots and Nazis leading a march in Charlottesville. But, it noted:

Censure is not impeachment. Whether that’s appropriate will likely depend on the outcome of special counsel Robert Mueller’s investigation into ties between Russia and the Trump campaign.

Opinion columnists are of course considerably more varied and excitable than editorial boards.

The latest offering from them about impeachment comes from Bloomberg opinion columnist Jonathan Bernstein, who argues that Trump’s disdain for the rule of law makes him worse than former President Richard Nixon:

Nixon at least pretended that the law applied to him; he just lied about following it. Trump expresses contempt for the rule of law every day — some days, he shouts it from the mountaintops. That attitude, more than any of the specifics of the Russia probe or the obstruction investigation, is why this is such a malignant presidency. And why, unfortunately, the House may eventually have no choice but to act.”

Bernstein argues that Trump has done enough to justify impeachment, but not enough to demand it. Yet.

“Trump seems determined to force the issue with his flat-out contempt for the rule of law,” Bernstein writes, citing:

  • His attacks on Mueller.
  • His collaboration with Manafort behind Mueller’s back.
  • His public hinting about a pardon.
  • His installation of a loyalist as attorney general, without Senate confirmation.
  • His defiance of constitutional prohibitions on emoluments.
  • His frequent suggestion that his political opponents should be imprisoned.

On MSNBC’s “All In” with Chris Hayes, Georgetown University constitutional law professor Neal Katyal said Thursday night that the latest revelations may leave Democrats no choice.

“Even if the Democrats don’t want to do it – impeachment — they almost are going to have to look at it very, very seriously now,” he said.

Katyal said the fact that Russian officials knew Trump was lying when he denied contacts with them gave them leverage over him. “We as Americans are only learning about it today, but the Russians have known about it for two years,” Katyal said. “This is a matter about the national security of the United States.”

Katyal is right, lawyer and Harper’s Magazine contributor Scott Horton wrote on Facebook:

The question of impeachment process is not about what is politically convenient, but what is constitutionally required. The developments of the last 72 hours suggest that the House will need to take up the issue of impeachment and convene hearings to review the possible charges and facts … even if a conviction in the senate seems politically blocked. I am not sure where this process leads, but I no longer see its initiation as avoidable.

But it’s not up to opinion columnists

It’s up to this man: incoming House Judiciary Committee Chairman Jerry Nadler, who the New York Times profiles today.

Reflecting the current position of other House leaders, Nadler appears utterly conflicted about how to proceed. On the one hand, the Times reports:

Mr. Nadler… insists that some of Mr. Trump’s supporters would have to be with him before he moved forward with impeachment.

On the other:

Mr. Nadler already appears to have all but given up on the idea that he would be able to convince Republicans of any presidential wrongdoing.

And while Nadler “has said explicitly that he will wait for Mr. Mueller to finish his work before seriously considering a remedy like impeachment,” the Times notes that he has also “begun poring over texts on the subject.” So who knows?

Federal workers: Do not send this column to your coworkers

An advisory from the Office of Special Counsel, which enforces the Hatch Act, notified federal employees yesterday that advocating for or against impeachment – or using variations of the word “resist” in that context – is now considered illegal “political activity.”

As Charlie Savage reports in the New York Times, it is “a pronouncement that legal specialists say breaks new ground, and that some criticized as going too far.

See previous Impeachment watch items. And please consider making a donation to White House Watch.

Trump threatens to use declassification power to beat back Democratic investigations

New York Post cover.

Declassifying documents for political gain is one of the more loathsome modern presidential norms. It’s typically done covertly. (See, e.g. Bush/Cheney after the Iraq war.)

But by publicly threatening to do it – as revenge(!) with specific political opponents as his targets(!!) – Donald Trump is profoundly shattering even that sordid precedent.

And for those of us keeping track of presidential practices that Trump has shown need fixing after he’s gone, it’s time to add abuse of classification authority to the list.

Trump’s threat came in an astonishingly brash interview with the New York Post on Wednesday, which garnered the most attention for Trump’s essentially dangling a pardon in front of Paul Manafort, his former campaign manager turned target and witness for special counsel Robert Mueller.

The day after Democrats won the House, Trump warned them that if they started investigating him, “then it’s just — all it is, is a warlike posture.”

He expanded on that on Tuesday. “If they go down the presidential harassment track, if they want go and harass the president and the administration, I think that would be the best thing that would happen to me. I’m a counter-puncher and I will hit them so hard they’d never been hit like that,” he told the New York Post.

According to the Post, Trump “said he could declassify FISA warrant applications and other documents from Robert Mueller’s probe — and predicted the disclosure would expose the FBI, the Justice Department and the Clinton campaign as being in cahoots to set him up.”

Trump’s conclusion: “I think that would help my campaign. If they want to play tough, I will do it. They will see how devastating those pages are.”

Steven Aftergood, who writes the Secrecy News blog for the Federation of American Scientists, called the comments outrageous.

“There has always been a political dimension to the classification and declassification process, which empowers the classifiers and leaves others at a disadvantage,” Aftergood said in an email. “But here the President is talking about weaponizing classification and using it to threaten and extort his political opponents. Amazing. It would make for an entertaining satire, but as actual national policy it is really hideous.”

It could also be an empty threat. There is no reason to think there are any documents that would indicate misconduct by Democrats. When Republicans called attention to former FBI official Peter Strzok, in an attempt to expose how  anti-Trump bias had tainted the Russia investigation, it backfired.

Trump has talked about releasing classified documents aimed at embarrassing Democrats before, going so far as actually directing the FBI and others two months ago to release some. He quickly backtracked under enormous pressure from the intelligence community.

Trump told the New York Post that he took White House lawyer Emmet Flood’s advice on the timing. “He didn’t want me to do it yet, because I can save it,” Trump said. Now he can wait until the Democrats fire first, he said.  “It’s much more powerful if I do it then,” Trump said, “because if we had done it already, it would already be yesterday’s news.”