In the landmark 1974 Supreme Court case United States v. Nixon, the embattled President Nixon invoked executive privilege to stop the release of his taped conversations with indicted subordinates in the Oval Office, including discussions about the Watergate break-in. Nixon’s conception of executive privilege was breathtakingly broad. As his lawyer, James D. St. Clair put it, Nixon considered himself “as powerful a monarch as Louis XIV, only four years at a time, and [...] not subject to the processes of any court in the land except the court of impeachment.” Since the “court” of impeachment is actually Congress, Nixon was in fact arguing that as president, he enjoyed absolute immunity from the judiciary.
The Supremes didn’t go for it however, unanimously rejecting Nixon’s claim as “contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of tripartite government.” The president resigned two weeks later.
But even though Nixon lost his case, events were definitely trending in his direction. Remarkably, Watergate proved barely a speedbump on the road to an ever-more powerful “unitary executive.” For a number of reasons (the deepening dysfunctionality of American electoral politics not the least of them), the legislative and judicial branches have willingly ceded authority to the executive branch ever since.
Some of the blame for this goes to Gerald Ford. Preemptively declaring “our long national nightmare” to be over, Ford pardoned Nixon, foreclosing a rare opportunity to reign in the power of the presidency. A decade later, after Oliver North, one of Ronald Reagan’s military aides, began arranging funding for the Nicaraguan Contras via the illicit sale of arms to Iran, the Reagan White House pushed the concept of executive privilege just as far as Nixon had. Farther, perhaps, because Reagan actually got away with it--assuming symbolic (and thus meaningless) “responsibility” for the actions of his subordinates, of which he nevertheless claimed to be unaware.
But it was 9/11 that really supercharged the consolidation of executive power. The George W. Bush White House used the attack to engineer a fake casus belli for the invasion of Iraq, a geopolitical blunder of world-historic proportions. It created black sites, enacted torture, ramped up spying on American citizens, and shrouded its decision-making in ever-greater secrecy.
Barack Obama’s election in 2008 was widely viewed as a popular repudiation of everything George W. Bush had stood for. But far from rolling back the enhanced security powers bequeathed to him by his predecessor, Barack Obama added to them, ordering several major military actions without any congressional approval, and prosecuting whistleblowers with unprecedented ferocity. Stymied by Congressional Republicans throughout both his terms, Obama also came to rely on executive orders to govern responsively.
Through it all, the guiding assumption of the national press and political class has remained that any president would, at the very least, abide by certain norms of behavior as to the use of their broad authority.
But in just his first week, Donald Trump has already shown the entire world the how dangerous it has always been to rely on the character of popularly elected chief executives as the only bulwark against authoritarianism.
Because Trump—a profoundly damaged human being if ever there was one—is now the most unfettered, institutionally powerful president in American history. He has more latitude to prosecute wars of choice than any president before him. He has more power and technical capacity to spy on anyone, anywhere.
Overseas, Trump’s White House can operate with less external oversight and more secrecy than any before it. Building on Bush II and Obama’s extensive use of drones, Trump commands more authority to order the assassination of anyone he deems a threat to national security. At home, he has more tools at his disposal with which to manipulate and punish the press, spy on political opponents, and intimidate potential whistleblowers.
Perhaps most worrisomely, Trump has more power than any executive before him to further degrade the power of the other two branches. With the help of Republicans in Congress, he is ramrodding profoundly unfit appointees to head crucial agencies with an absolute minimum of oversight. (Senators charged with confirming potential Education Secretary Betsy DeVos were arbitrarily limited to five minutes each.) And on the White House webpage describing the branches of the federal government, the judiciary branch temporarily disappeared altogether.
And thanks to his predecessors, Trump has plenty of rhetorical and legal ammunition with which to justify all of this. Indeed, the Trump administration is already defending executive overreaches like the refugee ban simply by repeating, ad nauseum, that the Obama administration did exactly the same things. Kellyanne Conway, Trump’s serpentiform advisor, justified the refugee ban to one reporter by saying, “President Obama did it, now President Trump is doing it.” That’s a lie, of course. The Obama Administration never came close to barring whole classes of refugees based on their countries of origin. But get used to hearing it, because it will be the party line after every one of Trump’s executive overreaches, no matter how egregious. And unfortunately, if Trump's administration starts prosecuting journalists for doing their jobs, that line will contain more than a hint of truth.
Still, we are where we are. If there is a silver lining to any of this, it’s that the Trump presidency represents an opportunity to correct a historic mistake going back at least some forty years. Our government is comprised of three equal branches. In order to be truly “equal,” they have to serve as a check on one another at all times, not just when the opposite party is in power. The “unitary executive” is a historical lie, and a precondition to autocracy. Beyond just seeing Trump impeached, his opponents should look to restore balance to the federal branches. This requires targeting the House and Senate leaders for at least as much political pushback as we give the president himself. Until men like Paul Ryan and Mitch McConnell put country over party—or (preferably) are replaced by people who do—there's really no stopping Donald Trump.
Update: I note, with no particular satisfaction, that I posted this a few hours before the Trump administration night-fired acting Attorney General Sally Yates, who had refused to enforce last week's immigration ban. The Saturday Night Massacre it ain't; Trump is well within legal bounds to do this. But the White House press release accompanying her firing reads like it was written by a pre-pubescent Nixon himself, noting darkly that Yates has "betrayed the Department of Justice," and is "weak on borders and very weak on illegal immigration."
It's worth noting that Sally Yates worked at the Justice Department for 27 years, serving administrations from both parties. To accuse her of "betraying" anything is both ludicrous and deeply unsettling. It's also worth remembering that while Trump can fire his legal staff whenever he likes, it is the AG's job to tell him when he's wrong, which is what Yates just did. At least that's what Jeff Sessions thinks the AG does, right?
If the shades of Nixon are this obvious from the cheap seats, I can only imagine how things look inside the Beltway these days. Yeesh.
