The Mafia Don Meets The Imperial Presidency
If he wins, Donald Trump will be the beneficiary of generations of presidential overreach
For the last three-quarters of a century American presidents have been absorbing more and more of the powers that the Framers had intended the three branches to share. In a new book, The National Security Constitution in The 21st Century,” Harold Hongju Koh, a former senior legal official in the Clinton, Obama and Biden administrations and a professor of international law at Yale, argues that the combination of a timid Congress, a deferential Supreme Court and presidents who insist that only the executive branch can respond effectively to crises abroad has placed almost unlimited power over national security in the hands of the executive. Koh didn’t write the book as a warning against Donald Trump; he says that he’s been mulling the subject for forty years. But he shows us that a determined autocrat will not have to wrest powers from the other branches; he will simply have to do so more cynically and ruthlessly than his predecessors already have.
We do not, of course, have a “national security” constitution. Koh uses the term to describe a combination of the actual language of the Constitution and the way it has been interpreted, statutes governing the distribution of powers, and norms that informally set boundaries and prerogatives. He argues that the Framers intended “balanced institutional participation” in which both the legislature and the judiciary held important checks on executive power. Presidents acknowledged those restraints; while George Washington unilaterally issued the 1793 Neutrality Proclamation, Koh observes, he recognized Congress’ right to change it through legislation. In war-time that balance always tilted towards the executive–during the Civil War Lincoln suspended habeas corpus–but then the pendulum typically swung back.
The Rise Of The National Security State
But America’s rise to global power in the twentieth century, and the air of permanent crisis that came with the Cold War, made those impediments on executive power seem archaic. Who but the President and his team of experts in the National Security Council could be trusted to act when the Soviets threatened an ally? “The government is going to be powerful or we are going to be obliterated,” as Clinton Rossiter put it in Constitutional Dictatorship. Though Congress passed the War Powers Resolution in the midst of the Vietnam War, presidents ever since have found ways to send troops abroad without triggering its provisions–and legislators have repeatedly declined to invoke its terms. When Congress passed the Boland Amendment to prevent the Reagan Administration from funding the contras in Nicaragua, Reagan’s team simply did so secretly, and illegally. With a few modest exceptions, they got away with it.
The last three Democratic presidents have been lawyers with a due regard for the rule of law; but Koh argues that each has “under-corrected” for the abuses of his Republican predecessor, in part because they, too, wanted the freedom to act without encumbrance. By the time he joined the Biden Administration, Koh writes, “I was startled to see that, in foreign affairs, the president now operates almost entirely by executive order or national security directive,” thus avoiding the need to consult with Congress–which is typically delighted to keep the burden of responsibility and blame on the President. Republicans castigated Biden for his abrupt withdrawal from Afghanistan, but made no move to block the effort.
Donald Trump was, of course, unconstrained by Biden’s commitment to democracy and the rule of law. He simply did what he wanted to, whether banning immigrants from Muslim countries or threatening to withdraw from Nato or abrogating trade deals. But his legal advisors had ample precedent to cite, even if they often twisted it out of shape. Article II, they claimed, gave the president full authority over national security. After all, in the 1936 Curtiss Wright decision the Supreme Court had flatly repudiated the founding model of “balanced institutional participation,” asserting that on foreign affairs, “the President alone has the power to speak or listen as a representative of the nation.” Trump was often rebuffed, but the Court, stacked with his own appointees, ultimately upheld the Muslim ban. And of course you’re not acting lawlessly if the Court takes your side. The recent decision declaring presidents immune from criminal prosecution for acts undertaken in furtherance of official duties gives Trump carte blanche, should he win again, to do almost anything to anyone.
The Real Enemy Is At Home
The really terrifying prospect, as we contemplate the possibility of a second Trump term, is that Trump doesn’t want to abuse the president’s national security powers in order to prosecute wars abroad, as Nixon, Reagan and George W. Bush did, but to pursue his enemies at home. Trump is the first president in American history to recoil from using force abroad but to embrace doing so at home. In their first term, Trump and his apparatchiks did not understand the mechanisms available to them to fully weaponize the federal government in order to pursue his enemies, whether immigrants or Democrats, and in any case did not have the personnel in place to do so. This time they’ll be prepared; according to a recent article in The New Yorker, right-wing groups are assembling a database of thousands of loyalists who can fill posts from which career civil servants will be purged.
Last week I attended a conference ominously titled “Autocracy in America.” One of the speakers, Asha Rangappa, a former FBI agent who now teaches at Yale Law School, suggested that a President Trump could dissolve the FBI, which has no legislative charter. Even should he not take this drastic step, Trump could replace agents in both the FBI and the CIA with MAGA partisans. They, in turn, could fabricate or distort intelligence in order to justify whatever measures Trump wished to take against alleged domestic threats. Or they could provide the pretext for the restoration of George W. Bush’s program of warrantless surveillance. Or they could drum up evidence that Democrats had rigged an election in order to overturn the results. The courts, Rangappa pointed out, echoing Koh, have been “incredibly deferential to Article II powers.” Asked whether anything could be done to fortify “guardrails” against such abuse, Rangappa flatly said no; it was too late for that. She compared the system of national security law to the Titanic, where one bulkhead after another has been breached and the ship can no longer stay afloat.
As I’ve written in the past, I’m not convinced that, should he win, Trump would turn over the reins of government to the Christian zealots around him. No libertine wants to live in a theocracy; and people who expect Trump to do something he doesn’t want to do have been disappointed in the past. I can much more easily imagine him reducing the country to a repressive family-run kleptocracy–the world’s biggest and richest banana republic. I don’t know if that’s better or worse. As Koh writes, Americans have been trained to think of their president as the ultimate bulwark against national security threats; Trump’s presidency just might be the gravest national security threat America has ever faced.
If it had been Dorothy Trump who had paid a male prostitute to clam up, the republicans would not have elected her as their candidate for a second term. I am absolutely sure this would have been the case - women and men are judged by different standards. Just ask VP candidate Vance (he must be wrestling with his conscience over the trial in NY - not the book keeping part of it but the original sin).