If the President Does It, It’s Not Illegal

There was a time, not that long ago, when this kind of authoritarianism could generate bipartisan opposition:

President Trump’s lawyers have for months quietly waged a campaign to keep the special counsel from trying to force him to answer questions in the investigation into whether he obstructed justice, asserting that he cannot be compelled to testify and arguing in a confidential letter that he could not possibly have committed obstruction because he has unfettered authority over all federal investigations.

In a brash assertion of presidential power, the 20-page letter — sent to the special counsel, Robert S. Mueller III, and obtained by The New York Times — contends that the president cannot illegally obstruct any aspect of the investigation into Russia’s election meddling because the Constitution empowers him to, “if he wished, terminate the inquiry, or even exercise his power to pardon.”

[Read the Trump lawyers’ confidential memo to Mr. Mueller here.]

Mr. Trump’s lawyers fear that if he answers questions, either voluntarily or in front of a grand jury, he risks exposing himself to accusations of lying to investigators, a potential crime or impeachable offense.

Mr. Trump’s broad interpretation of executive authority is novel and is likely to be tested if a court battle ensues over whether he could be ordered to answer questions. It is unclear how that fight, should the case reach that point, would play out. A spokesman for Mr. Mueller declined to comment.

Chait observes:

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.

It’s not an exaggeration. What Trump is asserting here is flat-out not compatible with liberal democratic government.