The following article by Joseph P. Williams was posted on the U.S. News and World Report website May 19, 2017:
Since taking office just over four months ago, President Donald Trump has made good on his campaign promise to shake up Washington, but, critics say, not necessarily in a good way.
From his refusal to divest of his real-estate empire to last week’s firing of a top law-enforcement official investigating alleged White House ties to Moscow, the former celebrity businessman has smashed political norms, ignored important governmental traditions and crossed bright-red lines designed to curb the power of the nation’s chief executive.
With near-daily breaking-news alerts about possible secret Oval Office recordings, reports he’s divulged classified intelligence to Russian diplomats, or his early-morning Tweetstorms, Trump has anxious Republicans, apoplectic Democrats and perplexed voters asking an increasingly urgent question: Can he really do that?
The answer is, mostly yes – at least so far.
The Constitution gives presidents wide latitude in their use of authority, and it’s up to Congress, the courts and the voters to rein in a leader who may have gone too far.
It’s too early to tell, however, if Trump – a mercurial billionaire more accustomed to barking orders as a CEO with his own jetliner than public accountability in a 240-year-old system of checks and balances – can expand presidential authority for himself, and perhaps his successors.
“Trump is an outlier,” says Terry Moe, a Stanford University political-science professor. “We’ve never had a president like him and we have to remember that we’re just in the first few months of his presidency. It’s not clear what kind of precedent he’s setting here.”
Still, given the breakneck pace of scandalous headlines and suggestions of impropriety erupting around Trump, it’s useful to know whether his actions are legal, and where the boundaries lie.
Discussing Intelligence Information with Russian Diplomats: When White House sources on Thursday told The Washington Post that Trump had disclosed highly classified material to Russian officials, the bombshell scoop rocked Washington and led some Democrats to call for the president’s impeachment. Trump, however, tweeted that he’s the president, and can legally decide what information should be declassified.
Sen. James Risch, R-Idaho, came to Trump’s defense: “The minute the president speaks about it to someone, he has the ability to declassify anything at any time without any process,” he said in a statement Monday.
Mostly true, according to Politifact.com, which analyzed the issue Tuesday.
“We found broad agreement that a president, using powers granted by the Constitution, is able to declassify essentially anything,” according to the website. “In this case, it appears Trump didn’t actually use his declassification power before talking to the Russian officials, and just because Trump’s actions were legal doesn’t necessarily mean they were wise.”
Firing Comey, the FBI director, who was actively investigating Trump’s ties to Russians: While the president initially said he sacked Comey for loss of confidence, outraged Democrats and good-government watchdogs saw the specter of Richard Nixon’s infamous Saturday Night Massacre, when the president fired a Watergate special prosecutor and his top two Justice Department officials resigned in protest.
It didn’t help that Attorney General Jeff Sessions, a close Trump ally, was involved in the decision to dismiss Comey. And when Trump himself said the former director’s ongoing probe into possible White House-Russia connections was a factor in his decision, his opponents sounded a red alert.
Presidential historians agree, though, that Trump can fire an FBI director for cause. Comey himself conceded the point in a farewell email to the Bureau’s staff: “I have long believed that a president can fire an F.B.I. director for any reason, or for no reason at all.”
Whether it was a good idea is an open question.
“The thing is, the FBI director is essentially an at-will employee,” Jonathan Turley, a George Washington University law professor, told U.S. News in a recent interview. “I think that if President Trump had hoped that firing Comey would put the investigation to rest, he must now realize that he was sorely mistaken.”
Pressuring Comey to end the Flynn investigation: On Tuesday, The New York Times reported that Comey kept careful notes on his meetings with Trump, and one memo included a potentially damning exchange over the Flynn investigation. “I hope you can see your way clear to letting this go, to letting Flynn go,” the president allegedly told Comey.
Even Trump’s Republican backers say the memo, if true, is uncomfortably close to obstruction of justice, with the president arguably trying to quash an active law-enforcement investigation of a former White House advisor.
“It certainly appears to meet the definition,” Sen. Angus King,I-Maine, said Tuesday on MSNBC.
If allegation becomes fact, however, it still might not be enough for Trump’s ouster: Under the Constitution, the House must initiate articles of impeachment, Republicans currently control the House, and the GOP is very reluctant to commit high-level political fratricide.
Moreover, Trump has publicly argued that “the whole Russia investigation exists only because Democrats are mad about losing [the White House] in the electoral college,” Rep. Adam Schiff, D-Calif., told The Washington Post. The test for Republicans, he said, “is whether they think the conduct rises to the point that they can make the case back home that this is not about re-litigating the election; this is about a fundamental threat to our democracy.”
Secretly recording White House conversations: In an NBC News interview shortly after Comey was dismissed, Trump said the former FBI director repeatedly told him he wasn’t under investigation. Comey’s allies immediately disputed that contention, but Trump fired back with an ominous tweet the next day. “James Comey better hope that there are no “tapes” of our conversations before he starts leaking to the press!”
No one knows whether the White House really has covert recordings of Trump’s Oval Office conversations; despite the Nixonian optics, and the veiled threat to Comey, press secretary Sean Spicer said the president’s tweet speaks for itself.
Trump had “simply stated a fact,” Spicer said.
If Trump did record his dinner with Comey, experts say, he acted within the law, just like his predecessors. Presidents from Franklin Roosevelt to Lyndon Johnson taped their official conversations, and in Washington, D.C., consent of both parties being recorded isn’t required.
Presidents who bug their own offices “might wish to make a historical record or use the tapes for impeachment later if the other party to the conversation misrepresents what they discussed,” says Marjorie Cohn, professor emerita of constitutional law at Thomas Jefferson Law School of Law in San Diego. However, she says Congress and the courts have laid down powerful markers.
“After Trump implied he may have recorded his conversations with Comey, Republican and Democratic legislators alike declared that the recordings would have to be provided to Congress if requested,” Cohn says, noting the Supreme Court ordered Nixon to hand over the Watergate tapes – an important precedent. “Trump would have to hand them over, or be held in contempt of Congress. [He] does not have an absolute, unqualified executive privilege to refuse to produce the recordings.”
Trump’s ongoing refusal to release his taxes or avoid financial conflicts of interest: Repeatedly asked about it during the 2016 presidential campaign, Trump promised to reveal his tax returns after the IRS completed an ongoing audit.
Days after taking office, however, White House counselor Kellyanne Conway said what Trump’s opponents suspected: The billionaire president’s complex finances, which reportedly includes worldwide sources of income, would stay under wraps – for good.
“We litigated this all through the election. People didn’t care,” she said on ABC’s “This Week” in January. “Most Americans are very focused on what their tax returns will look like while President Trump is in office, not what his look like.”
Though it’s a long-standing political custom – Adlai Stevenson was the first to do it in the 1952 presidential campaign – there’s no law that says Trump has to show the nation the sources of his wealth, what deductions he took or how much he paid to the government. But Fredrickson, the ACS president, says it’s traditional for a reason:The public can see if a candidate has financial problems or interests that would influence his decisions as commander-in-chief.
“Other presidents have seen it as an important norm that has guided their [ethical] conduct” in office, she says. “But President Trump has blown that up. It sets a dangerous precedent [and] raises the question of what other norms he’ll violate.”
The unpredictable former reality-TV star is walking a fine line between presidential authority and potential impeachment, but the Constitution likely will protect the government from long-term damage Trump could inflict.
Indeed, Congress has demanded the Comey memos, and the Justice Department has retained an independent counsel, former FBI Director Robert Mueller, and given him wide authority to investigate the Russia-White House scandal. Meanwhile, the ACLU has used the courts to block Trump’s executive order banning immigrants from Muslim-majority nations, and other good-government watchdogs are keeping a close eye on the administration.
“Big picture: This is a challenge for our separation of powers,” says Moe, the Stanford constitutional-law professor. “It’s the most severe test perhaps that it has ever had. The question is whether the system can contain him and keep him within constitutional bounds, and allow American democracy to survive.”
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