Executive Power

Standing on the Shoulders of Tyrants

Donald Trump's rhetoric is breathtakingly authoritarian, but so far he's done less than his predecessors to expand executive power.

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"I have the absolute right to PARDON myself," President Donald Trump announced via Twitter in June 2018. With that, he pitched a can of Sterno into the ongoing media firestorm over the special counsel's Russia investigation.

The last time a president contemplated a self-pardon was during the "final days" of Watergate. Nixon wasn't entirely in his right mind during this period: frequently drunk, possibly suicidal, incoherent, pacing the halls at night "talking to pictures of former presidents," according to his son-in-law. Still, even at his worst moment, Nixon had enough wits about him to know that trying to pardon himself would be crazy.

Trump seems to have arrived at a similar conclusion. His claims about his right to undermine the rule of law are frequent and contemptible. Yet as far as we can tell, they have mostly been rhetorical.

In the run-up to the 2018 midterms, for instance, the president threatened to issue an executive order revoking birthright citizenship—a move that would have flouted the plain language and legislative history of the 14th Amendment while putting more than 4 million Americans at risk of deportation. But this too seems to have been a pump fake designed to thrill the base and rile the media; it was abandoned after Election Day.

It's become a familiar pattern. Trump hits "send tweet" on some crank theory of absolute executive power. Law professors and pundits cancel their weekend plans, scrambling to figure out "Can he do that?"—only to realize, weeks later, that they needn't have taken him literally or seriously.

The 45th president's inability to act like a grown-up in a grown-up's job distracts us from a clear-eyed evaluation of what he's actually done with the enormous powers he inherited.

No president in living memory has been nearly as vocal about his contempt for the legal limits on his power; none has threatened half as often to throw them off. But again and again, Trump stares across the Rubicon, shrugs, and then heads back inside to live-tweet Fox News.

In the first hour of this presidency, just after Trump delivered his "American Carnage" inaugural address, George W. Bush supposedly remarked, "That was some weird shit." At this point, we can quibble only with W's use of the past tense: The current president's behavior has been so weird and unsettling that it's hard to get perspective on how bad we've got it. Trump's tweets, his insult-comic pep rallies, his general inability to act like a grown-up in a grown-up's job—everything about the 45th president distracts us from a clear-eyed evaluation of what he's actually done with the enormous powers he inherited.

Case in point: In January, The Atlantic marked the midpoint of Trump's tenure with "50 Moments That Define an Improbable Presidency," ranked "according to both their outlandishness and their importance." The former dominate the latter. By my count, 28 of the entries relate to Trump's freakish and often repugnant public conduct: using social media to share the wisdom of Benito Mussolini, referring to "shithole countries," firing his secretary of state via Twitter, and the like. Perhaps 10 of the 50 episodes feature the president misusing the powers of the office. "Trump threatens to press his 'nuclear button'" clocks in at number 17 on the parade of horribles—eight places behind his May 2017 tweet-burp, "covfefe."

But unsettling and repellent as Trump's behavior is, how he wields power has to matter more than what he rants about. It's entirely possible that Donald J. Trump is a terrible human being without a redeeming liberal impulse and not nearly as imperial a president as his two immediate predecessors. (Or at least not yet.)

In fact, a close examination of Trump's policies suggests that what we've got so far is the Xtreme Energy Drink version of what's been on tap for a long time. Like Four Loko, it clouds your vision, sours your stomach, and wrecks your head, but it may not be as lethal as the alarmists claim. In his first two years, Trump has aggressively exploited the powers he inherited, but—with very few exceptions—he hasn't really forged new frontiers in the expansion of executive power.

Bloody Business as Usual

Abroad, the executive's powers are at their apex. During President Barack Obama's final year in office, U.S. forces dropped more than 26,000 bombs on seven different countries. Nine months into his tenure, Trump had already blown past that tally. In 2017, he tripled the number of drone strikes Obama had ordered on Yemen the year before. In Somalia, he launched more than Obama had managed over two terms. In his first year, the self-styled "America First" president deepened entanglements on every foreign battlefield his predecessor left him, ramping up deployments, kill-or-capture missions, and civilian casualties.

But none of that required new claims of presidential power. Well before Trump took office, permanent war had become America's default setting, thanks in large part to the 2001 Authorization for the Use of Military Force (AUMF) that Congress passed three days after September 11.

Tasos Katopodis/Getty Images

Initially aimed at the perpetrators of the attacks and those who "harbored" or "aided" them, the AUMF by 2016 had been stretched by creative lawyering far enough to cover everything from boots on the ground in Tongo Tongo to drones over Timbuktu. Trump took that expanded authority and used it as legal justification for "bomb[ing] the shit out of" ISIS and other jihadist groups. But the real inflection point, quantitatively and qualitatively, happened under his predecessor. Trump's escalation of the war on terror may rest on shaky legal ground, but it's not territory the 45th president seized.

There's one area where Trump has ventured further than Obama: his annual spring bombing of the Bashar al-Assad regime in Syria. In April 2017 and again in April 2018, Trump ordered airstrikes on Syrian government assets in response to chemical weapons attacks attributed to the Assad regime.

The Trump administration couldn't credibly rely on the 2001 AUMF as legal justification for its drive-by missile strikes. Having already been used, tenuously, to cover ISIS, a group excommunicated by and at war with Al Qaeda, the AUMF couldn't also serve to underwrite military action against Assad, who's at war with both.

Instead, the president invoked his Article II powers as commander in chief and chief executive. A May 2018 memorandum from the Office of Legal Counsel (OLC)—"the president's law firm" and an ever-reliable font of constitutional rationalizations—lays out the theory: "the President could lawfully direct [the airstrikes] because he had reasonably determined that the use of force would be in the national interest and that the anticipated hostilities would not rise to the level of a war in the constitutional sense."

In other words, if the president thinks it's a good idea—and assures himself we won't get bogged down in a wider conflict—he can order up a light dusting of cruise missiles. "Not every military operation," OLC insists, "rises to the level of a war." Bombing raids are a microaggression, constitutionally speaking.

That is, of course, an extraordinarily broad interpretation of the president's war powers, which the Framers understood to cover repelling sudden attacks, not launching them. But it's nothing new. The Trump OLC opinion relies heavily on two Obama-era opinions, one written to support the war in Libya and another drafted when his administration was contemplating "humanitarian" intervention in Syria. And broad as the Trump/Obama theory is, it falls well short of the absolutist notions that prevailed in the George W. Bush OLC, which held categorically that decisions about the use of military force "are for the President alone to make."

Powers There for the Taking

Indeed, very few of Trump's most controversial initiatives have smashed the Overton window on executive discretion. His administration's cruelest policies—separating children from their parents at the border, aiding Saudi Arabia's murderous war in Yemen—didn't require a novel gloss on presidential authority. The powers were already in the White House's arsenal. "Zero tolerance" at the border was a (brutal) exercise of prosecutorial discretion, and it was Obama who first ordered aerial refueling and other assistance to a Saudi bombing campaign that has hit weddings, school buses, and hospitals, causing massive civilian casualties.

The administration's various attempts to impose a travel ban ran into stiff judicial resistance, thanks in large part to Trump's repeatedly calling it a "Muslim ban" and practically daring the courts to strike it down. (As was said of gangster matriarch Livia Soprano, "Between brain and mouth, there is no interlocutor.") Even so, the Supreme Court upheld a revised version of the order last summer, with Chief Justice John Roberts noting that the relevant statute "exudes deference to the President in every clause."

There's ample ground for disputing the Court's decision, but the case law supporting that deference long predated the Trump presidency. As the Cato Institute immigration scholar David Bier puts it, "It's difficult to do a genuine executive power grab in an area where SCOTUS and Congress have ceded this much power to the president."

When it comes to trade wars, Trump is demonstrably more bellicose than his immediate predecessors: Such face-offs are "good and easy to win," he tweeted last spring. Three days after his inauguration, he announced his decision to withdraw from the Trans-Pacific Partnership (TPP), a trade agreement with 11 Asia-Pacific nations that hadn't yet been submitted to Congress. In March 2018, he invoked his statutory powers under Section 301 of the Trade Act of 1974 to hike tariffs on a host of Chinese products, sparking a series of tit-for-tat countermeasures that now affects some $360 billion in U.S.-China trade.

Trump's authority to make these moves was hardly disputed. The modern U.S. trade regime delegates enormous power to the chief executive on the theory that, as the representative of a national constituency, he's more insulated from parochial interests than members of Congress and therefore a better steward of open markets. That theory met the ultimate test starting in January 2017.

The president didn't need to push the envelope on executive authority to penalize China or cancel the TPP. There is one front of the trade war, however, where Trump managed a significant executive power grab: his March 2018 imposition of steel and aluminum tariffs on national security grounds.

Trump is far from the first chief executive to jack up tariffs for naked political purposes. In 2002, George W. Bush imposed duties of up to 30 percent on imported steel, a move that his trade representative admitted was made to "manage political support for free trade at home." But the legal authority Bush invoked wasn't novel: The "safeguard" provision of the '74 Trade Act had been used some 28 times before to protect domestic producers from import surges—of motorcycles and steel under Ronald Reagan, for example, and of wheat gluten and lamb meat under Bill Clinton.

Prior uses of the national security clause had at least some plausible relationship to defense policy. In Trump's case, it was a transparent pretext.

Trump's steel and aluminum tariffs mined a different, and potentially much vaster, delegation of congressional power. Section 232 of the Trade Expansion Act of 1962 allows the president to "adjust imports" upon a finding by the commerce secretary that current levels threaten "national security."

Prior uses of the national security clause—embargoes on crude oil from Iran in 1979 and Libya in 1982—had at least some plausible relationship to defense policy. In Trump's case, the national security rationale was a transparent pretext. A memo then–Secretary of Defense James Mattis released after Trump's announcement notes that military demand for the two metals represents just 3 percent of U.S. production and that foreign competition would not "impact the ability of [Defense Department] programs to acquire the steel or aluminum necessary to meet national defense requirements."

In a challenge to the law brought by steel importers, a Justice Department attorney wouldn't give a clear "no" to the question of whether, under the statute, a president "worried about jobs in the peanut butter industry" could "make a national security connection" and order an embargo on imports of the sandwich ingredient. That may sound absurd, but it's probably a mistake to give this president any new ideas. He was apoplectic when Nabisco moved Oreo production to Mexico in 2015. Could Double Stuf imports be the next national security threat?

A Bogus National Emergency

Trump's use of the national security clause to impose steel and aluminum tariffs was the first time he added a new weapon to the executive arsenal. The second time involved his single-minded desire to build a wall along the border with Mexico.

In late 2018, the president forced a partial government shutdown by refusing to sign any spending bill that didn't include $5.7 billion for the barrier. At the same time, he began threatening to use emergency powers to fund it anyway. On February 15, he made good on that threat with a formal proclamation "Declaring a National Emergency Concerning the Southern Border of the United States."

The first paragraph of that proclamation concedes that "the problem of large-scale unlawful migration through the southern border is long-standing." Just before he signed the paperwork, Trump further undercut the "crisis" claim by admitting, "I didn't need to do this. But I'd rather do it much faster."

A president triggering emergency authorities isn't unusual, unfortunately. There are more than 30 national emergency declarations in effect right now, dating as far back as the 1979 Iranian hostage crisis. What's new here is the bogus invocation of an "emergency" to fund a pet project Congress had repeatedly refused to support. It's a militarized version of the "trillion-dollar coin" gimmick that Obama apparently contemplated, but never used, when the GOP in 2011 resisted raising the federal debt limit—an extralegal tactic better suited to a banana republic than a government of laws.

And it could set a damaging precedent. In 1952, Justice Robert Jackson wrote that the Framers feared that "emergency powers would tend to kindle emergencies," which was why they rejected any general grant of such power to the executive. But what the Framers withheld Congress has fecklessly ceded, via myriad laws passed over decades. A Brennan Center report released last December identifies 123 statutory powers the president can invoke in a self-declared national emergency, including the power to test chemical or biological weapons on human subjects or to take over "any facility or station for wire communications" if he proclaims that a threat of war exists.

Shortly after Trump's emergency announcement, Democratic presidential contender Sen. Elizabeth Warren (D–Mass.) weighed in on Twitter: "Gun violence is an emergency. Climate change is an emergency.…Donald Trump's ridiculous wall is not an emergency." She's right about the last bit, but it sure sounds as if Trump's gambit has inspired her to start envisioning emergency proclamations yet to come.

What About Whataboutism?

Trump's exploitation of national security and national emergency authorities in trade and immigration is cynical, lawless, and potentially dangerous. But the current president is standing on the shoulders of tyrants. Next to the executive power grabs of his two immediate predecessors, those innovations look like pretty small beer.

Declaring a national emergency might let Trump get away with shifting several billion dollars toward a Potemkin barrier on the southern border. But in 2011, Barack Obama managed to find enough loose change in the Pentagon budget to bomb Libya for seven months without any specific appropriations, let alone authorization, from Congress. As dubious as Trump's legal claim is, it doesn't require torturing the relevant statute nearly as much as Obama tortured the 2001 AUMF to wage war against ISIS—or as much as George W. Bush tortured U.S. law to justify actual torture.

Among other enormities, Bush implemented a host of secret dragnet surveillance programs and, in his last month in office, unilaterally ordered a multibillion-dollar auto bailout just days after Congress voted the move down.

Obama, who had pledged to "turn the page on the imperial presidency," launched two undeclared wars—in Libya and against ISIS—and defied the limits imposed by the 1973 War Powers Resolution on the novel theory that you're not engaged in "hostilities" if the foreigners you're bombing can't hit you back. At home, he used the powers of "the pen and the phone" to unilaterally rewrite federal immigration law and his own Affordable Care Act.

It's true: Trump talks like a caricature of a homicidal despot. At various times he's threatened to order the military to commit war crimes, bring back torture, "take out" terrorists' families, and "take the oil" from countries where we're at war. President Bush actually seized an American citizen on American soil and claimed the power to hold him as an "enemy combatant" in a military prison for the duration of the war on terror. And President Obama claimed, and exercised, the power to order drone strikes on Americans abroad. But because you could take Bush and Obama out in polite company and they'd sound the right notes about democracy and human rights, they were able to get away with far greater abuses than Trump has yet attempted.

It's at this point that such comparisons usually draw a charge of "whataboutism," a scurrilous debater's dodge that's become increasingly common in the Trump era. The Oxford English Dictionary, which added the word to the lexicon in 2018 on the strength of "a spike in use in relation to US politics in the past year," defines whataboutism as the "practice of responding to an accusation or difficult question by making a counter-accusation or raising a different issue." That's a tactic Trump himself has perfected, as when he rails against the special counsel investigation by demanding to know why no one's "looking into Crooked Hillarys crimes & Russia relations?"

It's true: Trump talks like a caricature of a homicidal despot. But because Bush and Obama sounded the right notes about democracy and human rights, they were able to get away with far greater abuses than the current president has yet attempted.

Still, whether a given comparison constitutes whataboutism depends on what you're on about. If the aim is to defend your side by pointing to the other team's sins, it's a logical fallacy. But what's at issue here is how much Trump has pushed the envelope on executive power, a question that cannot be answered without reference to those who pushed before. Lately, all too often, the "whataboutism" charge has itself become a diversionary tactic—an excuse for pretending that the history of presidential transgressions began on January 20, 2017.

The Abuses That Haven't Happened (Yet)

"So far, Trump has used his powers less aggressively than most modern presidents," University of Chicago law professor Eric Posner observed last year in The Washington Post. Indeed, what's striking is how many of Trump's truly awful, imperial notions turn out to be crazy-uncle-shouting-at-the-TV bluster that never gets a tangible follow-through.

Granted, some of those outbursts are genuinely terrifying. During his first year in office, Trump seemed determined to confirm the worst fears about his presidency, casually threatening to rain thermonuclear "fire and fury" on North Korea and tweeting playground insults at the hermit kingdom's paranoid dictator. But by mid-2018, the mercurial Trump and "Little Rocket Man" had embarked on a bizarre bromance as odd as—if less frightening than—their first-year Twitter war. Lately, Trump's hawkish would-be handlers mainly worry the president "will be overly enthusiastic about engagement with wily adversaries," as The New York Times put it. Last December, when Trump announced a withdrawal of U.S. troops from Syria, anonymous Defense Department officials and Rep. Nancy Pelosi (D–Calif.) accused him of playing "wag the dog" by trying to wind down a war. Apparently, the major risk with an unstable president is that we might pratfall into peace.

Trump's attitude toward federal law enforcement is nearly as unsettling as his sporadic saber rattling. The president has made it all too clear that he'd like to run the Department of Justice like a closely held business. He thinks his attorney general should have his back the way Bobby had JFK's, and he insists he has "an absolute right to do what I want with the Justice Department."

Unlike past presidents who seized new substantive powers in the midst of economic or foreign policy crises, The Atlantic's David Graham argues, "Trump seems to be pushing against the limits of his presidential power almost entirely to protect himself." Yet the material attempts the president has made toward that end have mainly been within his constitutional authority.

They've also tended to be comically self-defeating. Former Trump adviser Steve Bannon rightly called the May 2017 firing of FBI director James Comey one of the biggest mistakes in modern political history. That own goal may have weighed on Trump's mind in June 2017, when he very nearly removed Special Counsel Robert Mueller but then backed off when his White House counsel threatened to quit.

What's stopping Trump from going further to blow up executive constraints? Posner's Post piece offers three hypotheses. First, that the president is "a blowhard" who talks tough but shrinks from fights he might not win. Second, that it's all part of a sinister plan in which he steadily undermines the legitimacy of the courts and the media until he's ready to strike. Or third, that he has concluded his base is credulous enough to back him so long as he looks like he's fighting, whether or not he actually gets anything done.

Of these, the second explanation, which has Trump laying the "groundwork for an attack on our institutions at a politically opportune moment," is the least plausible. Such a scheme would require a healthy attention span and a modicum of self-restraint, neither of which this president has demonstrated so far. Being an effective autocrat is hard work.

The national emergency declaration that generated so much outcry fits perfectly into the staged-drama, reality-TV theory of the Trump presidency. It may be years, if ever, before a single "artistically designed steel slat" is implanted under its authority. But the president may not care. The "emergency" gambit gave him a way out of the corner he'd painted himself into. And when the courts get in his way, he can rant about "so-called judges" making us less safe.

Trump's lack of impulse control and self-discipline—his tendency to say the quiet parts out loud—have helped generate significant pushback, even #Resistance, within the courts and the federal bureaucracy. Our political system remains surprisingly resistant to one-man rule. There's a lot of ruin in a republic, it seems.

Past Performance and Future Results

Most presidents strive to leave the presidency stronger than they found it. Most of them succeed. A year ago, I thought it was a safe bet Trump would continue that trend. Yet so far, he looks poised to be the first commander in chief since Jimmy Carter who won't.

It would be foolish to conclude that we needn't worry about Trump's authoritarian temperament. He already holds the most powerful office in the world, and he regularly fantasizes about abusing that power to an audience of 58 million followers on a Twitter feed that sounds like a live broadcast of the Watergate Tapes. In government, as in investing, past performance is no guarantee of future results. The chances that Trump will be able to successfully act on one of his lawless impulses are far higher than the prospect that he'll suddenly turn "so presidential" we'll be bored, as he promised on The Today Show before his election. And nothing in the law or history of constitutional impeachment requires Congress to wait until after the damage has already been done before it opens an inquiry.

When we consider how many of this president's abuses, attempted or accomplished, were based on powers his predecessors had already seized, we should consider ourselves lucky things haven't gone worse. And we should set about reimposing limits on the office's powers before a competent authoritarian comes along.

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92 responses to “Standing on the Shoulders of Tyrants

  1. Donald Trump’s rhetoric is breathtakingly authoritarian, but so far he’s done less than his predecessors to expand executive power.

    Healy provides a huge list of “breathtakingly authoritarian rhetoric”, an equivalent list of not acting on that rhetoric, and comparisons to previous presidents who were much worse in their treading on our liberty, but not so maligned.

    As they say actions speak louder than words. While MSM actions of their words about Trump seems to bear more weight than Trump’s actions regarding policy (with Trump’s words providing fuel to the fire). I’d say libertarians should be celebrating the lack of authoritarian action by Trump. (full disclosure, I voted for Johnson).

    It seems obvious, Trump being a marketer, is merely setting expectations and encouraging certain behaviors via his empty threats. Liberals react with emotion instead of reason to him. The common thread about all my neighbors who put up “No Home For Hate Here” signs when Trump was trying to stop people and terrorists from coming here who were from countries with Jihadist movements? They all hate Trump! Do they see the irony? And I’d bet Trump would accept higher immigration levels if Congress and Democrats cared to negotiate, but it seems they prefer immigrants break the law to get them in the US. At least Trump is defending the rule of law.

    1. I don’t know. For years people have talked about how Obama got the deficit under control and stopped spending increases, then reversed them. Of course, it’s easy to point out that his proposed budgets were always spending increases, he just was kept under relative control by an “obstructionist” Republican Congress.

      The same could be happening here. Trump can’t do much because pretty much everyone is against him. The Democrats hate him. Many in his own party don’t like him. Career bureaucrats probably lean away from him. Who knows what he would do if he actually had carte blanche the way W did after 9/11, or the way Obama did his first two years. All of his words might become action.

      1. Spending under Obama increased every year? What are you blabbering about? He baselined tarp spending as part of baseline budgeting. He never reversed any spending. His yearly spending never decreased. What the hell are you talking about?

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    2. Liberals react with emotion instead of reason to everything.

      FTFY

      1. No, they have rational reasons, they’re just dishonest about what they are. Today’s left operate like psychopaths, and demagoguery, racebaiting, bad-faith arguments and misrepresentation are just necessary tools used to obtain their self-interested goals.

        1. All of that.

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  3. Several thoughts occur;

    Regarding his inflamitory rhetoric; Trump likes stirring up the idiots in the Media. Considering their sloppy and obvious partisanship, this is hardly surprising, and nothing more than they deserve.

    I think the ‘Emergency’ of the Mexican border is a good deal less bogus than open border advocates might like to believe. That Presidents from Reagan on have been kicking that can down the road makes it more urgent rather than less. Until the laws on immigration are changed we have a moral obligation to keep illegal immigrants out, becaue when in they are subject to all manner of exploitation….and the only way to get the laws changed is to enforce them so that the people they would inconvenience have reason to get off their fat rears and raise a fuss.

    It strikes me that, rhetoric aside, Trump has gone to Congress rather more often than his immediate predecessor, Jug-Ears the Magic African-American. Now that the enemies of the country have seized the House that may cease. We’ll see.

  4. Trump has yet to nationalize 18% of the US economy, so the bar was wet pretty high.

  5. Maybe it was all ‘wet’, but it should have been ‘set’.
    (Coffee still brewing)

    1. I like a wet bar.

      1. I like wet blondes .

  6. Don’t worry, Rachel Maddow is digging into this sham of an investigation and will show that Trump is Putin’s puppet.

    William Barr Memo Leaves Much Unanswered About Mueller Report Findings | Rachel Maddow | MSNBC

    https://www.youtube.com/watch?v=6jbb268pYAY

      1. She should run for president. She’s a woman and totally gay. She has two boxes checked !!!

        Maddow 2020!!!

        1. Oprah 2020. She checks all the boxes

          1. …but why would she want to take a demotion?

            1. For the greater good. Duh

          2. Oprah and Maddow checking each others’ boxes.

            1. Oprah and Maddow checking each others’ boxes.

              Would be more interesting to see Oprah and Maddow boxing each others’ cheeks.

  7. How come Trump is standing on the shoulders of the “tyrants” Slick Willy and Dubya ?

    How did 44 manage to slink off stage, even though he figures in the actual article ?

    Is your graphics / pic selection department a nest of true believing obamabots ?

  8. I do not think trumps claims that he can self pardon are as frivolous as you seem to think.

    Yes, there are limits on the presidents powers, but the list of established limits on the pardon power are very few (there are only two).

    1. The President can only pardon someone for Federal crimes. A presidential pardon would not apply against state charges.
    2. The President can not pardon anyone for future acts.

    As to whether or not a President can pardon himself, there have been few occasions to even contemplate the issue. The House of Representatives has only issued articles of impeachment against two presidents (and both failed in the Senate), and only two more Presidents have faced serious treat of impeachment.

    Since Clinton maintained he had done nothing wrong, Nixon was the last President who would have had cause to even contemplate self pardon, so the fact that Nixon was the last President to suggest self pardon as a possibility says absolutely nothing about the validity or lack there of to claims that a sitting President can pardon himself.

    If a sitting president does ever issue a self pardon, it will be an uphill battle to even get the courts to consider it’s validiity, as the courts have largely considered pardons to be non-reviewable.

    1. Impeachment would be the answer to a self-pardon. It would be like a pardon issued in response to a bribe – valid, but due to its motive corrupt and an attack on the Constitution. Which is probably why Trump hasn’t done it – he just wanted to set the media spaniels to barking.

      1. Impeachment would not be a very effective answer to a self pardon, if Trump did it a couple of weeks before leaving office. And given the behavior of the FBI and DoJ while he’s actually been in office, and the non subsiding derangement of his political opponents, he’d be taking a huge risk not to pardon himself on the way out, for any and all offenses that his enemies might choose to investigate him for.

        So if I were on his legal team I wouldn’t be worrying too much about whether he can self pardon – there’s no such limitation in the text, and currently the “living constitutionalists” are in the minority on SCOTUS. No I’d be worrying about the precise wording of “any and all offenses.” Wouldn’t want to slip up on any technicalities.

        1. The problem I see here is that the Democrats have already hit on the strategy of conducting civil lawfare against Trump in the state courts. He’s basically screwed once he leaves office, as he’s going to be spammed with frivolous charges, and spend the rest of his life fighting them.

          At this point he might as well just play Sampson in the Temple, and tear the whole rotten edifice down as he leaves.

  9. I will not argue that Trump has the right to pardon himself or not. I will say this though and it is something Trump should consider before he tries to pardon himself though. To receive a pardon one has to be guilty of what the pardon is to pardon. So for Trump to pardon himself the first has to admit that he is guilty.
    My comment does not address if Trump has something that needs pardoned but only on what pardoning himself would mean.

    1. ” To receive a pardon one has to be guilty”

      This is not true at all. The President doesn’t even have to wait for charges to be filed before issuing a pardon.

      There is a court chase where a defendant wanted to refuse a pardon on the grounds that the defendant considered accepting it to be an admission of guilt. However, in deciding that case the courts did not rule one way or the other on the issue of whether or not accepting a pardon is necessarily an admission of guilt.

      1. Burdick v. United States says otherwise.

        1. But it says so in dicta, not in the holding, so it has no true legal effect.

          Are Presidential Pardons an Admission of Guilt?

        2. But it says so in dicta, not in the holding, so it has no true legal effect.

          Are Presidential Pardons an Admission of Guilt?

  10. What was the point of this article? Obama was far more imperial and authoritarian to the point now that liberal judges are declaring his executive orders like DACA and drilling bans are settled law. When trump drones a us citizen without judicial approval, then we can talk about an imperial presidency indeed trump. Most of the verbal examples I’m this article are actually long running legal arguments surrounding executive power. It’s not even trumpnproclaiming a power but regurgitating legal arguments that have been told to him.

    1. “What was the point of this article?”

      Healy doesn’t like Trump, but he gets paid by the word.

  11. a move that would have flouted the plain language and legislative history of the 14th Amendment

    Saying it doesn’t make it so.

    Everytime I take a statement like this at face value, I find out that it was never actually true. I now don’t give much credibility to most news sources.

    Scholars have been debating the “plain language” of the 14th with regards to BRC for a very long time. To imply that there is no debate is a shameless lie and propaganda intended to keep us from debating it.

    1. Legal consensus something something.

      It’s amazing how you can find consensus when you ban all counter arguments.

  12. “The last time a president contemplated a self-pardon was during the “final days” of Watergate.”

    Healy seems to simply assume that is not legal; I seem to recall there was no clear answer as to whether he could or not.

    1. One day I’d like the Pres to pardon actual deserving *people* on Thanksgiving. There’s a tradition worth starting.

      1. Especially when the President eats a less worthy turkey later that same day. Also the idea that turkeys are killed for dinner because they are guilty is a very strange one.

      2. So far Trump has been issued 7 pardons, about as many as Obama had at this point in his Presidency.

  13. “Trump hits “send tweet” on some crank theory of absolute executive power. Law professors and pundits cancel their weekend plans, scrambling to figure out “Can he do that?”?only to realize, weeks later, that they needn’t have taken him literally or seriously, writes Gene Healy.”

    Not taking him literally or seriously is a problem.

    Gillespie (quoting someone else perhaps) once said something to the effect that “Trump’s critics take him literally but not seriously, where Trump’s supporters take him seriously but not literally”, and I think that gets it about right.

    There’s something even more fundamental going on. Progressives live in a world where the things people say in public are more important than what they actually do in private. An essential part of their thinking has to do with making it seem socially unacceptable, for instance, to be homophobic, misogynistic, racist, or xenophobic. This is why progressives on college campuses everywhere shut down controversial speakers–can’t have people thinking these ideas are acceptable! And this is why Truimp’s “public” statements about “pussy grabbing” or there being rapists among the illegal immigrants Mexico sends are so bad–probably foremost among Trump’s worst sins against progressivism.

    Yeah, Trump’s opponent make fools of themselves when they take Trump’s statements literally, but they’d also be foolish not to take his statements seriously.

    1. For example, Trump may not have been speaking literally about rapists among Mexican immigrants and Al Qaeda among the caravan, but anybody who didn’t think he was serious about building the wall was badly mistaken. Trump shut the government down over funding for the wall and ran an end around the separation of powers to get it funded. Not taking Trump seriously is foolish even if we shouldn’t take him literally.

      1. There are plenty of rapists and child molesters among the caravans. Trump was right in this regard. Media needs to save face so they attempted to twist his words into all immigrants are rapists. It was dishonest then, it is dishonest now.

        1. Um . . . still, Trump isn’t anti-immigration because he’s against immigrants coming here and raping our women. It mostly has to do with jobs, but there are other concerns like the lawlessness associated with drug trafficking and people smuggling, as well. There are a number of excellent solutions to rapists coming across our border. Trump favored the ones that were about law enforcement and jobs.

          It’s easy to get lost trying to defend literal interpretations, especially when literal interpretations don’t really matter.

          The Iraq War was justified on the basis Saddam Hussein was a collaborator with Al Qaeda with a WMD program. Some people have pointed to some forgotten stockpiles that were discovered years after the fact (and never used) as if spending $1.3 trillion and losing the lives and limbs of thousands of American heroes were somehow justified because someone somewhere literally found an empty shell with traces of WMD in it. If you want to defend the Iraq War, don’t hang your hat on a literal interpretation of whether Saddam Hussein had WMD. If you want to justify the costs, forget the horseshit politicians sell the media, and point to actual benefits that outweigh the costs.

          1. We don’t need to pretend that spending $5 billion on a wall is a smart thing because it might stop whatever random rapist may be in the next caravan marching towards the border. Trump was serious about the wall (and securing the border) for reasons that had nothing to do with random rapists. When you spend energy trying to defend Trump’s (or anybody else’s) literal statements, you end up hurting the larger argument. If you can’t tell the difference between Trump’s bullshit and what he’s serious about, then how can you expect other people to take you seriously when you’re defending Trump’s policies?

            I suspect you were in favor of securing the border regardless of whether there were any rapists in the caravan, weren’t you? If that’s your position, then why not start from that point? Tell people, “It doesn’t matter if there were any rapists in the caravan. We should secure the border anyway”. If Trump is right on issues x, y, and z, then it doesn’t matter if what he says in defense of those issues to manipulate the voters and the press–we should support him on issues x, y, and z anyway. We can either be drivers of public opinion with our friends, family, coworkers, and random strangers, or we can be victims of propaganda. It’s our choice not to fall into the common trap of defending literal interpretations of things politicians say to drive media coverage and political support.

            1. Trump promised to appoint good judges, and that’s what he’s done.

              Trump promised to respect the states on marijuana laws, and he stopped Sessions from doing what he’s always wanted to do and kept that promise.

              Trump promised to renegotiate NAFTA, and that’s what he did.

              Trump promised to pull us out of the Paris Accord, and that’s what he did.

              Trump promised to build a wall along our border with Mexico, and I’ll be damned if he didn’t do everything he could to get that done.

              Trump promised to pull us out of the Iran Nuclear deal, and that’s what he did.

              Trump promised to deregulate, and that’s what he did.

              Trump promised to undo ObamaCare, and he’s done pretty much everything he could to accomplish that.

              Trump promised that his deregulation and tax cuts would spark job growth in the rust belt, and that’s exactly what happened.

              Trump promised to give the Chinese hell on trade, and that’s what he did.

              From a literal interpretation, Trump has spouted so much horseshit over the last three years to defend those goals and get them accomplished, that the literal things he’s said are indefensible.

              1. His policies should have been taken seriously. I oppose a couple of those things he did, but when I oppose them, I don’t waste time talking about whether his horseshit was literally precise. I talk about the serious underlying issues. When I defend the issues he’s right on, I don’t waste time defending the horseshit he said to get them across either–for the same reason. Undecided people and people who disagree with us stop taking us seriously when we defend the literalness of horseshit.

            2. One time spending of 5 billion is far less than the long term of welfare programs to low skilled workers. Not even sure how you logically compare the two.

              1. “One time spending of 5 billion is far less than the long term of welfare programs to low skilled workers. Not even sure how you logically compare the two.”

                And which one of those has anything to do with rapists in the caravan? Trump’s horseshit about rapists in the caravan was horseshit–regardless of whether it was literally true!

                Is any of this getting through? Do you imagine it’s necessary to believe that rapists in the caravan is an important issue–so important that it doesn’t matter whether someone supports securing the border so long as they believe in rapists in the caravan?

                If we were to rank immigration issues in order of their importance, would anything be lower on the list than Trump’s claims about rapists in the caravan? Do you not see that by defending Trump’s claims about rapists in the caravan, we undermine support for border security in the minds of the American people?

                Do you or do you not support border security regardless of whether there were rapists in the caravan, and if the question of whether there were rapists in the caravan doesn’t change your opinion on border security, then why are you willing to defend the idea that there were rapists in the caravan?

                What point could you possibly be trying to make? Are you concerned about defending the intellectual honesty of an elected politician? Why in the hell would you care about that?

                1. You seem to be missing the point, Ken.
                  What you’re saying is a good observation and valid, but you’re too caught up in your own point to argue it effectively.
                  It seems like you’re taking the position that there was nothing true about Trump’s statement, but that it’s not important.
                  So why are you getting so upset by Jesse’s response?
                  Yes, it is important to argue the merits of a position seriously and not get hung up on the literal truth of political statements.
                  It’s also important not to completely cede ground to propaganda.
                  You dont have to get caught up in a debate about the accuracy of the statement to let it be known that you don’t concede to the mischaracterization of that statement.
                  You can refuse to submit to progressive falsehoods and still get to your larger argument.
                  It’s about emphasis.

          2. We take in a million immigrants a year legally. That’s more than any country on the planet. Being against another million coming over illegally is not anti immigrant. To suggest so is just fucking stupid. Trump has actually called for more migrant visas similar to what Bush proposed in 2006. But that’s not what the left wants, they simply want more votes. They know with the media on their side that if they cause a constitutional crisis of 30 million illegals they will get another 1986 amnesty. Fucking Jose Ramos is already calling for it. Being against this is not anti immigrant. Full stop. It’s just a stupid talking point. I expected more of you Ken.

            1. “I expected more of you Ken.”

              None of anything you’ve written here has anything to do with Trump’s horseshit statements. They’re things that are true regardless of whether the things Trump says are horseshit. The things you’re saying are true or not regardless of anything Trump says about rapists and Al Qaeda in the caravan. My question is why we feel compelled to defend Trump’s horseshit when the underlying issues and policies are legitimate regardless of what Trump says or whether his defense of them are literally true.

              Trump didn’t claim there was a danger of Al Qaeda in the caravan because it was literally true. He made that claim because it helps legally justify his executive actions as Commander-in-chief.

              We need to not be like Jane Fonda. No “Hanoi Jane”, you don’t have to swear up and down that the North Vietnamese are treating our POWs well–when they’re actually being tortured. You can oppose the Vietnam War without pretending that everything everyone says on your side must be literally true. Horseshit is said in defense of good causes all the time–especially by politicians. If Trump said that capitalism is better than socialism because capitalism means that everyone gets free steaks for dinner from the government, that doesn’t mean he’s wrong about capitalism being better than socialism. It just means that he’s full of shit.

              1. All politicians are full of shit. Ron Paul is full of shit. Rand Paul is full of shit. And, yes, Donald Trump is full of shit. If and when I support him, it’s because of his policies. Not because I believe the shit he says is literally true.

              2. Jesus Fucking Christ. What is your point? Other than to claim Trump said something he didn’t? He said open borders allow rapists and murderers to cross the border. It does, it literally happened last week. It happens in every caravan. What do you have against his actual truthful statement? How is it horseshit? The only way it is horseshit is if you’re fucking retarded and pretend he called all illegal immigrants rapists and murderers. Again, I expected more of you. The open border is a security issue, full stop. To deny this is to deny reality.

                1. “What is your point?”

                  Really?!

                  “It’s easy to get lost trying to defend literal interpretations, especially when literal interpretations don’t really matter.”

                  —-Ken Shultz

                  “I suspect you were in favor of securing the border regardless of whether there were any rapists in the caravan, weren’t you? If that’s your position, then why not start from that point?”

                  —-Ken Shultz

                  Example 1:

                  “There are plenty of rapists and child molesters among the caravans. Trump was right in this regard.”

                  —-JesseAz

                  Why does this matter?

                  Example 2:

                  “I expected more of you Ken.”

                  —-JesseAz

                  You expected me to defend claims that don’t matter either way because Trump made them–or you expected me to believe Trump’s claims about rapists and Al Qaeda in the caravan because I support border security?

                  Not sorry to have disappointed you.

                  Example 3:

                  “Other than to claim Trump said something he didn’t?”

                  —-JesseAz

                  So, now, not only were Trump’s statements true–but he didn’t actually make them?!

                  And all of this over a question that should have no bearing on whether we want to build a wall or support border security. Out of curiosity, what do you hope to accomplish by defending Trump’s silly statements?

                  . . . and he’s made a lot of them!

          3. We take in a million immigrants a year legally. That’s more than any country on the planet. Being against another million coming over illegally is not anti immigrant. To suggest so is just fucking stupid. Trump has actually called for more migrant visas similar to what Bush proposed in 2006. But that’s not what the left wants, they simply want more votes. They know with the media on their side that if they cause a constitutional crisis of 30 million illegals they will get another 1986 amnesty. Fucking Jose Ramos is already calling for it. Being against this is not anti immigrant. Full stop. It’s just a stupid talking point. I expected more of you Ken.

  14. Trump’s ‘pattern of cognitive decline’ alarms psychiatrists

    http://tinyurl.com/y5yn6srn

    THERAPISTS COIN NEW TERM: TRUMP ANXIETY DISORDER

    http://tinyurl.com/ycc7dqzr

    Maybe the shrinks are nuts with TAD so they think Trump is nuts. Who knows?

    1. Certain politicians need not fear cognitive decline – they really have nowhere to go but up (but they won’t go up).

      1. Eddy, excellent post. Enjoy your day.

    2. Practitioners diagnosing people through articles written by hostile journalists and weekly tweets is an incredible feat for psychiatric medicine.

      Correct me if I’m wrong, but isn’t diagnosing patients without a proper evaluation or an examination, an ethics violation?

      1. Ethics schmethics. By any means necessary!

  15. “So far, Trump has used his powers less aggressively than most modern presidents,”

    But you’re scared and you’ve got to write an article about something.

  16. Good article. Too many people worry too much about the nonsense that Trump says, and not enough about what he actually does, never mind how Trump’s actions compare to Dubya’s and Obama’s actions.

    1. Yes very good article, left me like James Carville in the Old School debate scene.

      In a way its an update of that good article from The Atlantic early in the campaign, where the author was pointing out that Trump’s fans take him seriously but not literally (where the haters take him literally but not seriously). Now he’s got a record in office, its clear his fans had a better take.

  17. I don’t remember Trump constantly calling it a “Muslim ban”, but I do remember everyone in the media and the Democrats (but I repeat myself) calling it a “Muslim ban.”

    1. Submit to The Narrative and forget what has been memory holed.

  18. I thought this was a pretty accurate analysis of the Trump presidency to date. I’d add another Trump outrage that probably came up after press time. Trump threatens to close our southern border. The media including Reason, are apoplectic. Mexico scrambles to limit entry at it’s southern border. Trump praises their efforts. Crisis averted. When I tell people that Trump is an ordinary president, I always get a look of shock in response. But in terms of policy it’s all been done before. Where he differs from his predecessors is in the threat he represents to the entrenched federal power structure, the deep state and the media. I think Twitter is probably the worst thing that has happened to the culture in a very long time and for Trump to shoot his mouth off there on a regular basis is frankly offensive to me. He comes off more like the loudmouth at the end of the bowling alley bar than a serious statesman. But baiting and befuddling his avowed enemies in the media and political class is pretty obviously an intentional and winning strategy. That they don’t seem to understand this is pretty hilarious.
    I’d personally be a lot happier if the media would “normalize” the Trump presidency so I could go back to my comfort zone of endlessly bitching about the president instead of defending him. The longer this goes on the more I like this guy. And yeah I also voted for Gary.

    1. ” I think Twitter is probably the worst thing that has happened to the culture in a very long time ”

      Yes, I never understood why anyone would want to hear that some acquaintance had just taken a shit. But hearing Trumps unfiltered rants may actually be the best thing that has happened to the Presidency, much like the photo of LBJ talking on the phone on the can, or Nixon’s taped anti-semitism, or Carters hemorrhoids. They de-mystify the office and make it easier to oppose the Prez’s power grabs.

      Or would prefer “the most transparent” Prez ever, who was maybe the most secretive?

  19. I would say that one of the great dissappointments in my life has been that no matter what Trump says he always seems to have his policy agendas foiled by the Deep State. The problem with the United States is that San Francisco liberals always seem to prevent us from installing one or two more GOP crackpots so that we can finally getting around to libertarian projects like building a 80 ft tall border wall with Mexico (personally i’m for one with Canada too) and spending a trillion dollars on the military. I mean, that’s what Obama wanted to do. {Throws up hands} I mean, shit man, how can you even tell the difference between Trump and Obama?

    1. “I mean, shit man, how can you even tell the difference between Trump and Obama?”

      That’s easy, compared to figuring out the difference between you and a blithering idiot.

      1. The deficit of humor is astounding.

  20. Just when you think Reason has totally given in to stupidity and clickbait, they actually post something thoughtful.

    I wonder how long it will take for Reason writers to go back to “Orange Man Bad” mode?

    1. “everything about the 45th president distracts us from a clear-eyed evaluation of what he’s actually done with the enormous powers he inherited.”

      Exactly

  21. Law and order conservative tyrants have been and still are preferred to the chaos and anarchy of progressive demagogues. That is why Hitler and Trump were elected, as the better alternatives. That is why Trump will be re-elected as the only alternative.

    Trump 2020 vision for the future. Make America Great Again. Make America ARMED and Safe Again. Make America Wholesome Again.

    1. Um…”Make America Wholesome Again.”

      Really? Trump,wholesome? That’s a different meaning than any I’ve encountered.

      Trump puts out tweets like a pilot throws out chaff, which effectively divert the enemy’s attention and missiles from the target.

      1. Because in spite of their high opinions of themselves, his enemies aren’t that bright.

  22. Hitler bragged around 1935-7 that it was now safe for a naked virgin with a sack of gold around her neck to stroll all night anywhere in Berlin. Unless she was Jewish or communist, of course. That was understood.

    Walls that work pretty damn well can be built. Soviet Union proved that in Berlin as well. Actually, heroin-based drug addiction can be stamped out to virtual completeness. China proved that 1948-49 by shooting all addicts and dealers and billing their families for the bullets.

    Drug abuse seeps back into China today the same way it did when the British began marketing opium at huge profit in China back when. It was a top-down phenomenon then, starting in the prestigious huge lazy bureaucracies (once you passed the Confucian exams you had it made) and royal courts around major cities, then working its way downward as the Brits figured out they could drop the price, grow the market, and make more profit.

    Liberal democracy does not necessarily breed decay, but prosperity tends to.

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  24. What, no mention of FDR?

    If Trump or any other of the recent tyrant-lights even threatend to do what FDR did (and tried to do), we would have riots in the streets.

  25. It trump wasn’t elected a lot would have happened, if reason shuts down nothing happens, context and perspective work every time it’s tried

  26. So, Trump is a loudmouthed blowhard who trolls the Media for political purposes? Who’da thunk?

    1. An EFFECTIVE loudmouth blowhard. Funny how Reason hates Trump but likes his appointments. Reason kinda got trolled ya think?

  27. The 45th president’s inability to act like a grown-up in a grown-up’s job distracts us from a clear-eyed evaluation of what he’s actually done…

    You’re only distracted because you can’t control your own emotions. If you were nearly as skeptical and committed to reason as you profess you would have seen through the divergence years ago. You may (yet).

  28. The POTUS isn’t a job for a grown up. It’s a job for a tyrant. Tyrants are petty, narcissistic creatures that only think short term.

    Tyrants are children.

    Enforcing a monopoly on the use of force upon a geographical area and coveting, stealing, and murdering your way to getting what you want is the Sine Quo Non of the State.

    What do you expect it to look like?

  29. Authoritarian, yeah right. I’m certainly no right wing Trump supporter, but the authoritarians in today’s US of A are the left. The vocal members of the democrat party and frighteningly authoritarian as is much of the press.

  30. I love that the defense of Trump is that he’s so incompetent that he couldn’t do it. What a low bar he has set.

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  32. I love this article. I do often get caught up in the hate fest of Trump because he just pisses me off. I think I’m mad about his policies or actions, but I’m not, it’s just the dumb public statements or tweets… Heck, half of the comments here are about his various public statements about pardoning himself or other nonsense. And some of you Trump fan boys are so busy defending Trump, you are missing the obvious point of the article. “But because you could take Bush and Obama out in polite company and they’d sound the right notes about democracy and human rights, they were able to get away with far greater abuses than Trump has yet attempted.” It’s true. We get caught up in the emotion and discard our Reason. Left or Right. Of course often the most impassioned argue that they are neutral and unaffected by emotion, which is also hilarious.

  33. The bottom line that all you limp wristed libertarians can’t admit is this: He’s been the best, and most libertarian, president the USA has had in many decades.

    This is not to say he’s perfect, or even super duper awesome… But he’s been the least bad. You just don’t like him because he isn’t a low testosterone Nancy boy who says things in a polite, PC way. You also don’t like a COUPLE of his policies, which for all you left-libertarians apparently out weigh all the good things he has done. That he wants to actually control the borders to protect the US from a flood of low skill useless immigrants somehow is a bigger deal than tax cuts, deregulation, and a less aggressive foreign policy, less anti gun, etc… How any sane libertarian can weigh those on a scale and come to that conclusion, I do not know. But that’s what it ultimately comes down to.

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