the national interest

The Constitutional Crisis Is Already Underway

Trump’s me-above-all persona is also his unsettling legal stance on presidential power. Photo: Olivier Douliery/Getty Images

For most of Donald Trump’s presidency, the specter of a coming constitutional crisis has loomed over the Russia investigation. The newly leaked memo by Trump’s lawyers, obtained by the New York Times, suggests that such a crisis is not merely a likelihood, but that it has already begun.

The memo proposes several tendentious interpretations of the publicly available facts of Trump’s behavior, along with some legally questionable and amateurish citations of precedent. But the most important passage is its sweeping assertion of presidential authority.

“The President not only has unfettered statutory and Constitutional authority to terminate the FBI Director, he also has Constitutional authority to direct the Justice Department to open or close an investigation, and, of course, the power to pardon any person before, during, or after an investigation and/or conviction,” they write, “Put simply, the Constitution leaves no question that the President has exclusive authority over the ultimate conduct and disposition of all criminal investigations and over those executive branch officials responsible for conducting those investigations.”

They did indeed put it simply. The implications of this authority are breathtaking. Trump, in their view, has unlimited control to open or close any federal investigation.

Trump has been angrily tweeting demands that the investigation into him and his allies be halted, and that the Department of Justice instead open investigations into his political enemies. These tweets have been treated as the ravings of a blowhard who just happens to occupy the most powerful position in the world, yet is somehow merely blowing off steam. His lawyers are fully endorsing Trump’s right to do exactly the thing he is calling for. Trump’s lawyers are saying that he should be taken seriously and literally.

Should Trump’s legal case prevail in the courts — and the legality of such broad claims remains largely untested — it would confer upon any president, but immediately Trump, the ability to open charges against anybody the president wants to charge, and prevent investigations of anybody the president wants to protect, beginning with himself. This is l’état, c’est moi rendered as a formal legal case.

Indeed, the conclusion of the memo hints a even more expansive uses for the terrifying powers Trump has claimed. “Every action that the president took was taken with full constitutional authority pursuant to Article II of the United States Constitution,” they write, “As such, these actions cannot constitute obstruction, whether viewed separately or even as a totality.” Article II of the Constitution establishes the Executive Branch, which has numerous other offices, some quite powerful. The Internal Revenue Service lies within Article II. Trump’s lawyers would seem to believe the president can direct the IRS to open or close any tax audit of any figure the president wants to subject to, or protect from, scrutiny.

Trump cannot obstruct justice, according to his official legal stance, because justice is whatever Trump says it is. Before this is over, either Trump’s sweeping claim will survive, or the rule of law will, but not both.

The Constitutional Crisis Is Already Underway