General

Raising the possibility of Donald Trump invoking emergency powers rather than get impeached or lose reelection, the Brennan Center for Justice on Wednesday challenged Congress to immediately start reviewing statutory provisions that release the president from many legal constraints upon his declaration of a national emergency.

In an article in the Atlantic, the Brennan Center’s Liza Goitein notes that Trump took unprecedented steps to boost Republican turnout in the midterm elections, such as sending active-duty troops to the border in response to an imaginary threat.

Then she asks: “How much further might he go in 2020, when his own name is on the ballot—or sooner than that, if he’s facing impeachment by a House under Democratic control?”

She envisions a not entirely implausible scenario that starts with Trump declaring the threat of war from Iran and closing internet sites belonging to groups he says are subject to Iranian influence. It ends with him sending a text message to every American’s cellphone warning of violence at the polls, deploying troops, and winning reelection.

The Brennan Center, a progressive legal powerhouse based at the New York University Law School, has an accompanying database showing all 136 statutory powers available to presidents in a pinch. And don’t miss Goitein’s marvelously succinct video (see above).

Congress built an “edifice of extraordinary powers” over decades based “on the assumption that the president will act in the country’s best interest when using them,” Goitein writes. But some of them “appear dangerously suited to a leader bent on amassing or retaining power.”

It’s arguably the most terrifying example yet of how Congress has ceded the presidency enormous power during the last several decades. The solution, Goetien explains, is for Congress to impose “strict time limits on presidentially declared states of emergency” and “revise emergency powers to ensure that they don’t threaten Americans’ fundamental rights and freedoms.”

But she acknowledges in the video that the current Congress is unlikely to take the required action. Instead, she encourages “forward-looking committee chairs” to at least launch the process.

So, best-case scenario, that leaves Trump at least two full years with all these powers at his disposal.

I’m actually more concerned about Trump inciting and then overreacting to a terror attack. But more on that some other time.

 

To people who take our history unsanitized, please, the slobbering over George H.W. Bush’s life by the mainstream political media has been hard to take.

Luckily, the internet is alive with some excellent reads about Bush 41’s real legacy of war crimes, racism, and obstruction of justice (thank you, Mehdi Hassan); his deadly neglect of the AIDS crisis (thank you, Garance Franke-Ruta) and the “dinner-jacketed decorum” he used as a cover for the racism and cynicism that brought us the likes of Clarence Thomas and Willie Horton (thank you, Peter Birkenhead).

And Bush the father was nothing compared to the son — who lied us into war, embraced torture and police-state-level surveillance and, although he may not have lied about everything, lied about pretty much all the big things.

Nevertheless, this is no time to lose sight of the fact that Donald Trump is a uniquely awful president in ways that even Bushian depravity doesn’t rival.

Trump’s uncouth and unvarnished expressions of racism and his barely disguised hatred of women have fed the darkest and most ignorant strains of American politics, empowering white nationalists and misogynists, readmitting language and sentiments into our political discourse that had gradually been disgraced, and generally reversing what had been American society’s reasonably steady movement in the direction of pluralistic enlightenment.

His countless lies, his demonizing of the traditional media and other truth-tellers, his contempt for science, and his divisive rhetoric imperil the American people’s ability to ever find common ground.

And his assaults on the judiciary and law enforcement, his personal corruption, his degradation of government agencies, his possible involvement in Russian interference with our elections, and his embrace of authoritarians and authoritarian ideas have for the first time in modern history made Americans actively worry for the future of their democracy.

If the Bushes are everything wrong with democracy, at least they didn’t threaten it in the ways that Trump does.

Finally, the total lack of empathy that undergirds Trump’s approach to the world puts him in a tiny minority of human beings. So, barring another improbable political calamity, that alone will make him the worst president ever.

George H.W. Bush and his son may well have paved the way for someone like Trump to con, hate, and wheedle his way into the presidency. But even they recognized that they had created a monster.

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.