New York Times (Op-Ed)
By Eric Posner and Emily Bazelon
May 21, 2017
As President Trump stumbled from crisis to crisis this past week, he reminded the country of a lesson it didn’t really need to learn: A president’s greatest asset is trust. Once he has lost it, he can’t govern. Mr. Trump’s serial recklessness may change not just the course of his presidency but also the office itself. Whatever happens to him, it’s not too soon to wonder what will happen to the presidency when he’s gone.
For decades, the power of the executive branch has been growing, a trend that Congress has encouraged, both actively and by default. And the courts, the other check on the executive, have often been willing to defer to the president’s prerogatives.
But President Trump’s words and actions are straining the relationship between the executive and the other branches of government in ways that may ultimately diminish the power of the office. By showing he’s unworthy of the trust that a president customarily enjoys, Mr. Trump has essentially been daring Congress, the courts and even the bureaucracy to act against him.
And those institutions are taking him on.
The firing of James Comey as F.B.I. director illustrates how the president’s rash words have invited the trouble he now finds himself in, paving the way to last week’s appointment of a special counsel by the Justice Department to investigate potential ties between Mr. Trump’s campaign and Russian meddling in the election.
For a president, this is pretty much the definition of shooting oneself in the foot. Consider that, in explaining why he fired Mr. Comey, the head of the agency conducting the Russia inquiry, the president told Lester Holt of NBC, “And in fact, when I decided to just do it, I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made-up story.’ ” If that wasn’t startling enough, the president also reportedly told Mr. Comey in a private meeting, “I hope you can let this go,” referring to the agency’s investigation into his former national security adviser, Michael Flynn.
And then there was this report on Friday, which the White House did not deny, that in a meeting with Russian officials in the Oval Office this month, Mr. Trump told them: “I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off.” He added. “I’m not under investigation.”
Maybe. Maybe not. Either way, these comments and other reports have raised concerns that the president was trying to obstruct F.B.I. investigations. It’s up to Robert Mueller, the newly appointed special counsel, to determine whether a crime was committed. But Congress, as a coequal branch, also has the responsibility to investigate allegations of wrongdoing. And in fact, Congress has seen this before. The articles of impeachment prepared against Richard Nixon and Bill Clinton accused both of obstructing justice.
Now the question is whether the Republicans who control the investigative committees in Congress will push as hard as necessary to find out whether Mr. Trump abused his power and violated his oath of office. In a crucial development, the House Oversight Committee and other Congressional panels have requested all materials related to Mr. Trump’s and Mr. Comey’s communications.
The Senate Intelligence Committee also made the welcome announcement on Friday that Mr. Comey will testify in public sometime after Memorial Day. Still, it remains to be seen whether the Senate majority leader, Mitch McConnell, and House Speaker Paul Ryan are committed to truth seeking, with its potential cost for the Republican Party.
If members of the Republican leadership think Mr. Mueller’s appointment lets Congress off the hook, they’re wrong. His authority is limited. He works for President Trump’s Justice Department. He has no responsibility to air his findings, short of an indictment. And his investigation may drag on for years before we learn anything. Given that, it is imperative for Congress to fulfill its mandate to explore all of the relevant goings-on and to report to the public what it finds.
As a structural matter, Congress is the institution best positioned to address the harms President Trump is causing, including trampling on norms separating politics from law enforcement and damaging America’s standing abroad, as well as the potential conflicts of interest posed by his wide-ranging financial holdings and the hiring of family members into key White House jobs.
The courts, for their part, have already served as an early-warning system for checking the president.
The clearest example is the legal battle over Mr. Trump’s revised order banning travel from six majority Muslim countries, which was the second one issued following his campaign promise of “a complete and total shutdown of Muslims entering the United States.”
This month, at hearings on a case challenging the ban, judges from two courts of appeals wrestled over what weight, if any, to give Mr. Trump’s statements, which suggest that his underlying purpose was to, well, shut out Muslims rather than the stated purpose of protecting the country from terrorists.
Judges are normally unwilling to look beyond the text of an executive order to divine the motivations of the president, especially in the areas of national security and immigration, where his powers are at their zenith. But Judge Robert King of the United States Court of Appeals for the Fourth Circuit in Richmond, Va., pointed out that Mr. Trump “has never repudiated what he said about the Muslim ban — it’s still on his website.” (The text has since been taken down.)
The president’s words also tripped up his effort to withhold federal funds from cities and states that limit their cooperation with federal immigration agents. Challenged in court, the administration argued that Mr. Trump’s order, directed at so-called sanctuary cities, applied only to relatively small amounts of money. But Judge William H. Orrick of the United States District Court in San Francisco didn’t feel bound by the official explanation.
“If there was doubt about the scope of the order, the president and attorney general have erased it with their public comments,” Judge Orrick wrote, pointing out that Mr. Trump called the order “a weapon” and Attorney General Jeff Sessions threatened to “claw back” funds that were already awarded.
The courts have refused to give Mr. Trump the customary deference they give a president because this president so obviously has not earned it. Employees of the executive branch have gotten into the act as well. While all presidents must contend with leaks, revelations have been pouring out of the intelligence community and even the White House.
With the courts and the intelligence community increasingly arrayed against him, and Congress now investigating his campaign and actions in office, Mr. Trump finds himself in a much diminished presidency. If he remains in office for an extended period in this weakened state, it’s possible that Congress and the courts will essentially put the presidency into a kind of constitutional receivership until his term ends.
What would that look like? It’s hard to know, but it would be a striking setback to presidential power. After Watergate brought the presidency low, subsequent presidents took back power, largely with the acquiescence of Congress and the courts.
Both George W. Bush and Barack Obama flexed their executive muscles. Mr. Bush enhanced the president’s control over national security after the Sept. 11 attacks by opening Guantánamo, trying terrorism suspects before military tribunals, and authorizing warrantless wiretapping. Mr. Obama took unilateral aggressive actions to reduce greenhouse gas emissions and reform immigration.
They left the office stronger than when they arrived. Although their policies were controversial, both presidents were given deference because they made their judgments conscientiously and led the government professionally.
But Mr. Trump has created an entirely new problem for Congress, the courts and agencies: What do they do when the president himself is the pressing danger? Unlike other presidents, Mr. Trump has lacked the basic competence to manage the government. If Congress and the courts diminish the power of the office to constrain him, could they leave the office too weak for future presidents to be able to govern effectively?
The answer is that with the country at risk of serious harm from Mr. Trump, the damage to the office is secondary. The next president will just have to pick up the pieces.
Eric Posner is a professor at the University of Chicago Law School. Emily Bazelon is a staff writer at The New York Times Magazine and fellow at Yale Law School.
A version of this news analysis appears in print on May 21, 2017, on Page SR1 of the New York edition with the headline: Will the Presidency Survive This President?.
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