Trump's Lawyers Revive Imperial Presidency

      Three years after quitting the White House in disgrace, the former president Richard M. Nixon explained to the British interviewer David Frost his understanding that the president is not so much above the law as the personal arbiter of the law itself. Asked about the legality of his conduct in the Watergate scandals, Nixon answered as though stating the obvious, "Well, when the president does it, that means that it is not illegal."
      Nixon's claim was so audacious that the video clip has been replayed and viewed countless times as the simplest and most blatant expression of his constitutional offenses.  Four decades later, however, President Donald Trump's lawyers are now reviving the Nixonian theory of the imperial presidency in defending him against two of the many accusations against him of unconstitutional conduct.
      Attorney General William Barr had no compunctions whatsoever in using a nationally televised congressional hearing last week [May 1] to claim for Trump the power to shut down a criminal investigation into his own conduct. Political and legal historians immediately saw a parallel in Barr's view of presidential power to Nixon's ill-fated decision to fire Watergate special prosecutor Archibald Cox in October 1974.
      Admittedly, Barr was just starting law school at the time of the Saturday night massacre in fall 1974, but still he must know that the American public, Congress, and the judicial system decisively rejected Nixon's claimed power to shut down the Watergate investigation. A special federal court found Cox's dismissal illegal and then appointed Leon Jaworski to take over the investigation. The ensuing history gives no support for executive branch partisans such as Barr.
      Here, from Barr's testimony before the Senate Judiciary Committee as questioned by ranking Democrat Dianne Feinstein, is his explanation for Trump's power to remove special counsel Robert Mueller had he chosen to do so. Note at the outset that Barr misstates the Mueller report by depicting the evidence as conclusively disproving the accusations against Trump rather than falling short of provable obstruction of justice.
      "If the president is being falsely accused, which the evidence now suggests that the accusations against him were false, and he knew they were false, and he felt this investigation was unfair, propelled by his political opponents, and was hampering his ability to govern, that is not a corrupt motive for removing an independent counsel. So that's another reason we would say the government would have difficulty proving this [obstruction of justice] beyond a reasonable doubt."
      Barr went even further in his role as Trump's lapdog by contending that Trump's direction to his former White House counsel Don McGahn to lie about Trump's instruction to raise a phony conflict of interest issue to try to remove Mueller. "That's not a crime," Barr said without a moment's hesitation. He reasoned that McGahn's lie would not have impeded Mueller's investigation because McGahn had already testified about the episode.
      In the meantime, Trump's lawyers were advancing a similarly expansive view of presidential power in defending him in federal court against a lawsuit seeking to stop him from further violations of the Constitution's Emoluments Clauses. Ruling in a case brought by Democratic members of Congress, Blumenthal v. Trump, U.S. District Court Judge Emmet Sullivan rejected Trump's lawyers' various arguments for narrowing the definition of domestic or foreign "emoluments" that the president, along with other federal officers, are constitutionally prohibited from accepting without consent of Congress.
      Sullivan, a no-nonsense judge appointed to District of Columbia courts by two Republican presidents before being appointed to the federal bench by President Bill Clinton, devoted most of his 48-page opinionto a point by point refutation of the arguments for overlooking all the foreign governments booking expensive stays or events at Trump's Pennsylvania Avenue hotel. In sum, Sullivan found that the Framers understood emoluments broadly to include any financial benefits and viewed the clause as a safeguard against foreign influence on the president.
      Apart from those unsuccessful arguments, Trump's lawyers also argued that the court had no power to order the president to stop accepting foreign emoluments. Instead, they argued, the plaintiff lawmakers "can only obtain relief from the president"--totally up to the president, in other words, whether to comply with the Constitution or not. Sullivan answered by citing judicial precedents. "When there is no other remedy, courts have allowed suits against the President to proceed," he wrote.
      The president's duty under the Emoluments Clause, Sullivan went on, was clear and absolute. "The acceptance of an Emolument barred by the Clause is prohibited unless Congress chooses to permit an exception . . . ," the judge wrote at page 47. "Given the 'sweeping and unqualified' Constitutional mandate, the President has 'no discretion  . . . no authority to determine whether to perform the duty' to not accept any Emolument until Congress gives its consent."
      Trump's lawyers had one more argument: an injunction to block any further emoluments, they warned, would create a "significant burden" for a president who, it needs to be noted, refused to divest himself of entangling financial interests before entering the White House. "It may take judgment and planning to comply with the Clause," Sullivan wrote, "but he has no discretion as to whether or not to comply with it in the first instance."
      With lawless arguments such as these, it is no wonder that the disgruntled conservative commentator Max Boot now views Trump's presidency as "criminal" and Barr's "jaw-dropping" performance as reminiscent of Nixonian hubris. With the Mueller investigation over, Boot wrote in a column over the weekend [May 4], "we are left with the dismaying likelihood that the president will now feel emboldened to commit ever greater transgressions to hold onto power."