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How Trump is turning the American presidency into a dictatorship
May 08 2020
Coleman was an assistant Missouri attorney general and later a Republican member of the House of Representatives from 1976 to 1993. Now retired as a lobbyist, he is an advisor to the Protect Democracy Project, an anti-authoritarian watchdog group.
<p>Since taking office more than three years ago, President Trump has consistently shown a complete lack of understanding of the fundamental precepts of our constitutional system. </p>
<p>He doesn't fathom the doctrine of separation of powers, the limitations placed on a president through the Constitution's checks and balances. And he doesn't comprehend the foundation upon which all of it rests — the rule of law. All of which raises the question: Will Trump become an unaccountable dictator? </p>
<p>Last year Trump asserted he could personally take over special counsel Robert Mueller's investigation into possible Russian influence in the 2016 election and his own role in it "if I wanted to." Emboldened after being acquitted by the Senate on the House's impeachment charges, he said, "I'm actually, I guess, the chief law enforcement officer of the country." And he has claimed that, as president, the Constitution gives him "the right to do whatever I want." </p>
<p>Most Americans had never considered an American president would speak such words. They are the musings of a monarch from centuries ago, or a dictator ruling in a banana republic. </p>
<p>It's doubtful the president came up with these constitutional perversions by himself. Assistance was surely provided by his current White House counsel, Patrick Cipollone, and Attorney General William Barr. Both are leading proponents of what's known as the unitary theory of the executive, an extreme doctrine of presidential power that has no legal boundaries. It is radical, wrong, undemocratic — and dangerous.</p><p>This theory is as obscure as it is controversial. It is a viewpoint that proponents argue is found in Article II of the Constitution: "The executive power shall be vested in a president of the United States of America." Those words have been variously interpreted to theoretically invalidate any statute passed by Congress that denies the president "exclusive control" over a "purely executive" power — and thus violating the principle of the separation of powers in the Constitution.</p><p>Other supporters of the theory take a more extreme view. They consider independent federal regulatory agencies as illegitimate, since they are structured to be insulated from presidential control. They believe Congress has no power to demand information from any part of the executive branch. And they assert that executive authority, under the Constitution, gives a president whatever powers are left specifically unchecked by either Congress or the courts. </p><p>Advocates of the theory posit that Congress cannot compel executive branch personnel to appear on Capitol Hill, even under subpoena. Not surprising, these were the same arguments put forth by Trump's lawyers in several court cases brought by the House against the president. They also served as a cornerstone of Trump's defense in the Senate impeachment trial. </p><p>While not the first presidential proponent of the theory — George W. Bush referred to it in more than 161 bill-signing statements — Trump has taken it to a significantly higher level. </p><p>Consider if Trump really has all the powers he thinks he should have. If only the president could determine what presidential powers exist, then a president could do more than act whenever Congress had not set specific parameters on a given topic. Under this extreme theory, his unilateral actions, even in the face of explicit congressional opposition, would be nonetheless constitutional. </p><p>This is precisely the issue now before the federal Court of Appeals for the D.C. Circuit. Is it appropriate for the House to challenge Trump's decision to build a wall on the southern border with funds not appropriated for that purpose?</p><p>Richard Nixon pretty well summed up the essence of the unified theory of the executive this way: "When the president does it, that means it's not illegal."</p><p>If Trump continues to lean on this crackpot theory to justify his governing decisions, it will have historical consequences for our nation. He would end our democracy based on the rule of law and replace it with an unaccountable dictatorial king. </p><p>The proponents of the unitary theory of executive power have constructed an alternative Constitution in much the same way Trump has used what his aides describe as "alternative facts" to conjure an alt reality. </p><p>If that sounds scary, well, it is. This president believes he has found the keys to the kingdom made possible by this discredited constitutional theory. It makes him, effectively, a king. </p><p>To overcome and reverse Trump's actions, we are encouraged by the wise counsel of Justice Robert Jackson, who came up with a famous test for evaluating claims of presidential power in a 1952 opinion preventing President Harry Truman from taking over the steel mills to avoid a strike during the Korean War.</p>
<p>"With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the executive be under the law, and that the law be made by parliamentary deliberations," he wrote.</p>
<p>It's time for Congress and the courts — and the voters — to act accordingly, before it's too late.</p>
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Allowing President Trump's stonewalling to continue "without the potential of a judicial backstop would gut Congress' ability to effectively check executive overreach and lawbreaking," writes former Rep. Tom Coleman.
A court must decide: Does the law still apply to everyone, the president included?
Mar 25 2020
Coleman was a Republican member of the House from Missouri from 1976 to 1993. He is a retired lobbyist and an advisor to the Protect Democracy Project, an anti-authoritarian watchdog group.
It is a bedrock American principle that no one, not even the president of the United States, is above the law. The president, like all Americans, must pay taxes, must give evidence when sought by a court or Congress, and must follow the law. If this principle is to survive, the D.C. Circuit Court of Appeals must reverse a ruling that Congress cannot sue to enforce subpoenas of executive branch officials.
In the wake of the report from special counsel Robert Mueller, last April the House Judiciary Committee subpoenaed former White House counsel Don McGahn to provide testimony about President Trump's efforts to obstruct the investigation of Russia's meddling in the 2016 election. The White House informed the committee that the president ordered McGahn not to appear, asserting that certain presidential aides are "absolutely immune" from being forced to testify — a privilege no other president has ever claimed. As a result, the committee sued to enforce its subpoena.
In February, a three-judge panel of the D.C. Circuit punted on the central question, ruling 2-1 their court does not have the power to settle this dispute between the congressional and executive branches. If that is allowed to stand, Congress' ability to conduct legitimate oversight will be severely limited and Trump will be further emboldened to ignore our constitutional system of checks and balances.
<p>Fortunately, the full appeals court has agreed to review that ruling, starting with oral arguments April 28. I joined a bipartisan group of 96 former members of Congress and executive branch officials on a brief urging the full court to reverse the three judges. We all understand Trump's unprecedented stonewalling goes well beyond the sort of normal back-and-forth between branches during oversight discussions that we witnessed when we were in office. Allowing his behavior to continue without the potential of a judicial backstop would gut Congress' ability to effectively check executive overreach and lawbreaking. </p><p>There is one silver lining in the court's initial decision: Two of the three judges expressed deep skepticism about Trump's claim of "absolute immunity," which he's using to keep aides and former aides from testifying to Congress. The court's rejection of this argument is so important because, sadly, there are many examples of Trump's team trying to exceed the constitutional limits placed on the presidency. <img src="https://lh6.googleusercontent.com/REvRvwkUIr8VsGyIWyk_Qjb_zDo8ntVMPmfXhBn38tNJy5siLHnzjXRQmI1HZFpjtkJbGKiGKt_VcDBuONac6eeTJ4lK-9CflUJjPRm3hYST24hztRL80cGe6HhabMod0ha09QUO"></p><p>In case after case, Trump has argued he cannot be held accountable. In <a href="https://www.scotusblog.com/2019/12/justices-to-take-up-battle-over-trump-financial-documents/" target="_blank">three cases</a> now before the Supreme Court he has argued that, not only can Congress not investigate him, neither can state nor federal law enforcement officials. The obvious question: Who can investigate presidential wrongdoing? The answer, according to the president: Nobody! Under his view, a president can break the law with impunity. Trump's attorneys even told a judge that <a href="https://www.usatoday.com/story/news/politics/2019/10/23/president-donald-trump-could-shoot-someone-without-prosecution/4073405002/" target="_blank">the president could shoot someone dead and escape all legal consequences</a> while in office. </p><p>These are dangerous arguments on their own, but the president and his lawyers are also concealing their true meaning by engaging in a dangerous shell game to evade accountability. For example, while the administration was telling federal courts — including the D.C. Circuit in the McGhan case — that they have no authority to enforce congressional subpoenas, the president's lawyers were simultaneously telling Congress it could not impeach Trump for obstruction of Congress because it should have relied on the courts to force the administration to turn over information. </p><p>One of the president's Senate impeachment trial lawyers, Alan Dershowitz, even claimed that "abuse of power and obstruction of Congress are outside the range of impeachable offenses." So according to the president, he can ignore congressional subpoenas even in the context of an impeachment proceeding and courts can do nothing about it, and he can't be impeached for it. Stripped down to its essence, this argument would mean that no one — not law enforcement, not courts, not Congress — may investigate him or hold him accountable for abuse of power. </p><p>The president's argument is radical and wrong. Our Founders did not create a presidency beyond the law, above any checks and balances, and answerable to no one but himself. Quite the opposite.</p><p>James Madison, frequently described as the "Father of our Constitution," would no doubt be joining our legal crusade if he were alive today. Our fourth president — like me, a former House member — recognized the human temptation to gather power. He anticipated Trump's arguments when he wrote in <a href="https://avalon.law.yale.edu/18th_century/fed48.asp" target="_blank">Federalist 48</a> that "the accumulation of all powers legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny."</p><p>The American answer to tyranny, of course, required our Founders to revolt against an unaccountable king. They wrote our Constitution to assure that they, and we, would live in a democracy. Our nation's history illustrates the president's claims to monarchical immunity are hollow and weak.</p><p>Americans who cherish our democratic system, and the checks and balances that sustain it, are depending on the courts to reject the president's repeated attempts to subvert the Constitution and the principle that — no matter your station in life — how high your office, how deep your pockets or how many lawyers you may have, the law applies to everyone. </p>
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