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(There's something of a contradiction in the way that much of the left
regards this investigation. You have Max Blumenthal, Stephen F. Cohen
and the nutty SWP basically siding with Trump on the basis that this
investigation represents the "intelligence community" out of control but
you also have deep concerns about whether Trump is positioning himself
as the American Putin, Modi, Erdogn or Orban--or even worse, Hitler or
Mussolini. I personally think he is modeling himself on Putin. But when
you read the article below, you will understand that if Trump shuts down
the investigation, he will appropriate powers that no American president
has ever come close to, including Richard Nixon.)
NY Times, June 5, 2018
Trump and His Lawyers Embrace a Vision of Vast Executive Power
By Charlie Savage
WASHINGTON — President Trump, ramping up his assertions of extraordinary
powers, declared in a tweet on Monday that he had “the absolute right”
to pardon himself for any crime.
While no president has ever purported to pardon himself, and it is not
clear whether Mr. Trump could legitimately take such a step, the
president’s claim was the latest in an aggressive series of moves to
assert his control over federal law enforcement.
Last month, Mr. Trump crossed a traditional line by ordering an
investigation into the Russia investigators. And late last year he
boasted he has “an absolute right to do what I want to with the Justice
The president has had help in shaping his expansive view of his
authority: For at least a year, his lawyers in the investigation into
whether he tried to obstruct the Russia inquiry have been advising the
president that he wields sweeping constitutional powers to impede
investigations no matter his motive — and despite obstruction-of-justice
laws that everyone else must obey.
He has unfettered authority to fire the F.B.I. director, which he did
last year; to order a federal investigation opened or closed; and to
pardon anyone, including felons or criminal suspects, his longtime
personal lawyer Marc E. Kasowitz said in a confidential memo last June.
“The president cannot obstruct himself or subordinates acting on his
behalf by simply exercising these inherent constitutional powers,” he wrote.
Many legal scholars have derided such claims as going too far, although
no Supreme Court precedents offer definitive guideposts about whether
Congress can make it illegal for a president to use his powers to
supervise the Justice Department in a corrupt way.
“We overthrew control by a monarchy, and the Constitution signals in
multiple places that the president is subject to law,” said Peter Shane,
an Ohio State University law professor and co-author of a
Mr. Kasowitz made his case in a letter to the special counsel, Robert S.
Mueller III, and it was endorsed by two of the president’s other
personal lawyers, John M. Dowd and Jay A. Sekulow, who incorporated his
arguments in their own letter to Mr. Mueller in January. Both letters,
published over the weekend by The New York Times, offered an array of
factual and legal arguments for why Mr. Trump has not violated
obstruction laws and need not answer questions from Mr. Mueller.
The idea that presidents, by virtue of their unique constitutional
powers, are above ordinary law has surfaced from the White House before.
Defenders of the Reagan administration made the claim during the
Iran-contra affair, and lawyers in the George W. Bush administration
wrote memos blessing torture and warrantless wiretapping programs. As
Richard M. Nixon claimed after the Watergate scandal: “When the
president does it, that means that it is not illegal.”
But the Trump team’s claim that obstruction-of-justice statutes do not
apply to the president carries new twists.
For one thing, such disputes have tended to arise in the context of a
president, in his role as commander in chief, pushing legal limits to
defend the country from foreign threats. Even the Nixon administration
rationalized surveillance of domestic political opponents, including
antiwar and civil rights leaders, by citing worries about potential
covert Soviet subversion.
Mr. Trump’s lawyers, by contrast, are claiming that he is “the chief law
enforcement officer” — a description usually applied to the attorney
general — wielding absolute power to command the actions of every
federal prosecutor or F.B.I. agent in a way no congressional statute can
limit. And he is doing so in the context of an investigation aimed at
uncovering the scope of a foreign power’s covert meddling with American
democracy — and whether he personally obstructed that inquiry.
The implications of Mr. Trump’s claim also go beyond the context of his
lawyers defending him in a criminal case. If obstruction statutes cannot
stop Mr. Trump from shutting down an investigation even if he did so
with a corrupt motive, then Justice Department procedures and
regulations also cannot stop him from ordering an investigation into his
political opponents for corrupt reasons.
Those factors make the Trump lawyers’ claims different from assertions
by previous presidents that the White House can lawfully bypass
important statutes, said David Kris, a former senior Justice Department
national security official during the Bush and Obama administrations who
is a co-founder of the consulting firm Culper Partners.
“Trump is doing this not for national security reasons but to impede an
investigation into himself and his associates, and he’s staking a far
more sweeping claim to power than even other presidents by saying he can
use the Justice Department for whatever he wants,” Mr. Kris said.
He added: “They are saying not just that the president is above the law,
but in effect that he is the law — that he is the personification of
justice and cannot obstruct himself. That is very stark and not very
The constitutional theory Mr. Trump’s team has put forward is not his
first line of defense. They also have mustered factual claims, denying
wrongdoing and arguing that as a technical matter, a particular
obstruction statute did not apply to his actions. (The memo, however,
appeared to be focused on the wrong statute, rendering the statutory
arguments beside the point.)
But the Trump team is invoking its aggressive constitutional theory to
backstop its other arguments. Even though Congress has made it a crime
to impede a pending or potential grand-jury investigation or trial with
corrupt intentions, they said, that statute cannot be applied to Mr.
Trump, no matter what the evidence shows about his actions and intentions.
Both Nixon and President Bill Clinton were accused of obstruction of
justice by lawmakers as part of impeachment proceedings, drawing on
evidence brought to light by prosecutors who, rather than charging them
with crimes, sent reports to the House Judiciary Committee for
impeachment consideration. But the actions those presidents were accused
of — like witness tampering or suborning perjury — were not an exercise
of their official powers as president.
The novel issue raised by the investigation into Mr. Trump — assuming
Mr. Mueller has not uncovered evidence of other obstructive actions that
is not yet public — is whether Congress can make it a crime for him to
use his power over the law enforcement system with a corrupt purpose,
even if it would otherwise be lawful for him to take such steps.
“Put simply,” Mr. Kasowitz wrote last June, “the Constitution leaves no
question that the president has exclusive authority over the ultimate
conduct and disposition of all criminal investigations and over those
executive branch officials responsible for conducting those investigations.”
He added that “while there are various political checks and balances
that would inform the president’s exercise of this authority as a
prudential matter, and various norms have developed over the years as a
result of those checks and balances, none of these diminish the
president’s ultimate constitutional authority over investigations and
No Supreme Court precedent exists that directly addresses the questions
of how far Mr. Trump’s constitutional authority extends to supervise the
Justice Department, or whether, if he did corruptly exercise that power,
the statutes that make obstruction of justice a crime apply to him.
Presidents and Congress routinely jostle over where to draw the line
between their respective and often overlapping powers, but the Supreme
Court rarely gets involved in adjudicating such questions.
Still, the court has ruled that Congress can impose some restrictions on
a president’s power to control the executive branch, including by
upholding statutes that prevent him from firing certain officials,
including certain prosecutors, without good cause. On the other hand,
Congress clearly signaled that it intended for those statutes to apply
to presidents, while the obstruction statute is a general law.
While Britain’s kings traditionally wielded a prerogative power to
suspend or dispense with laws, the framers of the Constitution required
the American president to faithfully execute them, Mr. Shane noted.
Though what that means can sometimes be blurry, he said, the Trump claim
struck him as dubiously broad.
“The idea that the president could — regardless of his motive — just
work his will on the investigation of civil or criminal offenses, that
the Constitution frees him to act with corrupt motives, is just an
affront to the idea of the president as a public trustee and subject to
Follow Charlie Savage on Twitter: @charlie_savage.
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