Trump’s Inclinations and Actions Remain Thankfully Divergent

donald_trump_president-elect_portrait_croppedBelow is my column in The Hill newspaper on the reported interest of President Donald Trump in ordering the investigation and prosecution of Hillary Clinton and James Comey.

Here is the column:

The reported demand of President Trump to have the Department of Justice prosecute his 2016 political opponent, Hillary Clinton, and former FBI director, James Comey, is deeply alarming. Such an order would violate long-standing rules separating presidents from such prosecution decisions, particularly when directed against political opponents.

One of the most alarming aspects of the story is its timing. If true, Trump has still not learned basic lessons about the limits of his office, despite two years of self-inflicted injuries caused by his own ill-conceived actions and comments. He is not unique, however, as a president who seems to fit uncomfortably within his office.

Trump reportedly told former White House counsel Donald F. McGahn II that he wanted to order the prosecution of Clinton and Comey. McGahn, as he had in the past, pushed back on Trump and explained that such an order would be a fundamental violation of our legal system and would raise a viable basis for impeachment. In doing so, McGahn again fulfilled the most essential function of his office in reminding a president of the navigational beacons of his office. This suggestion was not just outside of those beacons but off the known navigational chart.

What is most distressing is that the president is still even contemplating such actions after he incurred huge costs with missteps at the start of his administration. Like the recent disclosure that Ivanka Trump used her personal email system for official communications, after her father’s vehement campaign against Clinton for such violations, there appears to be a dangerously long learning curve in the White House about basic rules of conduct.

Nevertheless, it is notable that Trump did not in fact give the order. There remains a sharp disconnect between Trump’s rhetoric and his actions. When viewed from his actual decisions, Trump is not dissimilar from prior presidents. While perhaps due to the principled stance of people like McGahn, Trump has adhered to contrary court rulings and has not materially departed from the baseline of prior presidents.

Indeed, other presidents have proven far greater menaces to the Constitution but are, today, curiously celebrated as great leaders with little reference to their constitutional violations.

Consider Abraham Lincoln, who committed an act that is the very definition of tyranny under our Constitution: He unilaterally suspended habeas corpus in the United States.

Referred to as “the Great Writ,” habeas corpus affords citizens the right to challenge their arrests and jailing. It is the right that not only protects due process but checks authoritarian power. The suspension of that right is left to Congress under Article I, Section 9, which mandates that it should not be done “unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Lincoln acted during the Civil War, of course, but he acted alone without Congress’s approval. Moreover, many political opponents of Lincoln, including “Copperheads” (Democrats in the North who opposed the war), were arrested. While Congress later tried to rectify the problem retroactively, Lincoln clearly violated the Constitution.

Similarly, Franklin Delano Roosevelt refused to accept basic limits on this authority. One of the most alarming cases involved the capture of two teams of German saboteurs in 1941 who were supposed to wreak havoc in a secret operation called “Pastorius.”

From the outset, two of the saboteurs (including their leader) intended to reveal the operation upon landing, and did so to the FBI. (Then-Director J. Edgar Hoover would later lie to the public and Congress, claiming that his agents discovered the plan). Roosevelt insisted that all eight men be shot and that Hoover be given a medal. His aides noted that the men deserved a legal process, which Roosevelt refused to acknowledge. When the case went to the Supreme Court, Justice Owen J. Roberts was used to convey to the whole court in its internal conference that FDR intended to have all eight men shot if the court did not acknowledge his authority.

In other words, if the court found that the men had rights, FDR would shoot them in defiance. In one of the most unethical and shameful moments of the court, the justice relented and circumvented a confrontation.

Strangely, former White House counsel John Dean said this week that even Richard Nixon, who resigned just before impeachment, would never have contemplated such an order. Since Nixon carried out the infamous “Saturday Night Massacre” (in which he ordered the firing of a special prosecutor, which led to the removal of the two highest ranking Justice officials who refused to obey his order) — not to mention his misuse of the FBI and CIA for criminal purposes — the moral or ethical clarity suggested by Dean is rather difficult to discern.

Even a liberal icon like Barack Obama flouted the Constitution, ordering the nation to war in Libya without a congressional resolution, let alone a declaration, and repeatedly circumvented Congress in areas such as immigration — the very act that Obama’s defenders now denounce in the Trump administration.

Considering such blatant historic violations, in both peacetime and wartime, presidents are a virtual rogue’s gallery of unconstitutional actors. Ironically, while viewed as someone with authoritarian ideations, if not inclinations, Trump thus far is distinguishable in not actually giving orders to do things like firing special counsel Robert Mueller or demanding the prosecution of his former political opponent.

That does not mean this new account should not be treated as alarming. Trump continues to maintain that he can order the entire investigation closed and fire anyone with impunity. He is wrong, and such an assault on the process would raise serious questions for impeachment. Indeed, it is unnerving to hear any president voicing abusive thoughts. However, this is why the White House counsel position is so vital, and why confidentiality is so important. If we had a transcript of all the ideas raised by presidents in anger or frustration, it would likely chill the public to its core.

None of this excuses President Trump if he suggested such a course of action. His extreme view of presidential power seems indelible and inalterable, despite a series of losses in court and recurring chaos in the White House. We have reason to be concerned.

From a constitutional perspective, Trump remains what a beat cop might call a “suspicious character” who talks boldly of unlawful schemes but, thus far, has a relatively clean record. The greatest irony would be if Trump actually continues this course in complying — reluctantly — with the Constitution while stating a desire to violate it. Conversely, his more polished, circumspect predecessors often voiced fealty to constitutional limits while honoring them largely in the breach.

With McGahn and others gone from his inner circle, and things heating up in Washington, Trump could still yield to his worst inclinations and send his presidency and the country into a constitutional crisis. The fact that he has not done so remains strangely intriguing and even encouraging.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

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