Quinta Jurecic and Benjamin Wittes: 23 dangerous propositions the Senate just ratified
Things snowballed in 2019. In February of that year, Trump announced that he had the “absolute right to declare a national emergency” in order to obtain border-wall funding that Congress had not authorized. In April, Trump denied reports that he had offered to pardon the Customs and Border Protection commissioner if he were arrested for enforcing Trump’s policies at the U.S.-Mexico border, but tweeted that he had “the absolute right” to close the border. In October, in the midst of the House impeachment inquiry into his July 25 phone call with Ukrainian President Volodymyr Zelensky, Trump claimed that he had an “absolute right, perhaps even a duty,” to ask foreign countries for help in investigating corruption. In November, he derided Marie Yovanovitch, the former U.S. ambassador to Ukraine, by tweet in the middle of her testimony before the House Intelligence Committee and claimed his “absolute right to appoint ambassadors.”
The temptation may be to dismiss Trump’s theory of absolute rights as a showy rhetorical tic. But one of his very first acts as president was to operationalize that theory, not long after debuting it on the campaign trail. “The president has the right to ban any group or anybody … that he feels is going to do harm to our country,” Trump explained in a June 2016 appearance on Howie Carr’s radio show, while inveighing against Muslim immigration to the United States after the mass shooting at Pulse, a gay nightclub in Orlando, Florida. “They have an absolute right, Howie.” Seven days after his inauguration, Trump signed a legally and operationally unworkable executive order imposing a 120-day ban on entry for all refugees from seven Muslim-majority countries and an indefinite ban on all refugees from Syria, which reportedly underwent none of the usual interagency review processes.
Most recently, less than a week after claiming his “absolute right” to intervene in Stone’s case, Trump issued a round of pardons that conspicuously included his friends and associates, most colorfully Rod Blagojevich, the former Illinois governor and a contestant on Trump’s show Celebrity Apprentice, who was caught on FBI wiretaps in 2008 trying to sell President Barack Obama’s Senate seat. The move suggests more coming interference on behalf of Stone, the “tough, loyal guy” whose case, Trump alleges, was “totally out of control and perhaps should not have even been brought,” and whose trial, Trump claims, suffered “significant bias.” Last week, when asked again about his plans regarding Stone, Trump mused aloud, “I’m allowed to be totally involved. I’m actually, I guess, the chief law-enforcement officer of the country.”
Read: Will Trump destroy the presidency?
The point is, Trump’s theory of executive power does real work and has had real consequences. The opening memorandum prepared by Trump’s defense team for his Senate impeachment trial, for example, served as an homage to the general concept of absolute rights and built from its vision of an unconstrained executive the startling argument that the president cannot be impeached for abuses of power. Trump’s coinage actually made a revealing, and legally mystifying, appearance in the brief: “It is well settled that the President has a virtually absolute right to maintain the confidentiality of his diplomatic communications with foreign leaders.” As support for this sweeping claim, Trump’s team cited the Supreme Court’s 1974 decision in United States v. Nixon. But that decision notes nothing more than the courts’ traditional deference to the president’s claims of executive privilege over communications bearing on sensitive foreign-policy and national-security matters—and ultimately determined that President Richard Nixon had to hand over tapes subpoenaed by the special prosecutor investigating the Watergate scandal.