Conservative Lawyers Confront The Monster They Made
When Rep. Jerrold Nadler said that America is in a “constitutional crisis” — as he and other members of the House Judiciary Committee voted to hold Attorney General William Barr in contempt of Congress — commentators scoffed that the Manhattan Democrat was exaggerating, at least a little. The sweeping, concerted resistance to Congressional oversight by Barr and the Trump White House isn’t that much worse than what other presidents of both parties have done, they assured us.
Except it is. Ask any of the conservative Republican lawyers who are now trying to alert the country about Trump’s unchecked abuse of presidential power. That dissenting cadre within the president’s own party includes former government officials who helped to create this danger.
The enduring peril to a presidential system like ours is a chief executive who behaves as a monarch, untethered by the balancing authority vested in the judicial and legislative branches of government. On dozens of occasions during his brief presidency, Trump has expressed imperious disdain for Congress and the courts. Now he is acting on that impulse.
When he launched a racist attack on a judge who displeased him, when he directed border agents to disregard court orders, when he threatened repeatedly to “break up” the Ninth Judicial Circuit for rulings he disliked, he brazenly violated constitutional norms. When he declared a fake “national emergency” to seize funds for his border wall that Congress had not appropriated — and this month, when he directed all executive agencies, including the Justice Department, to ignore legal subpoenas from Congressional committees — he arrogated monarchical power.
The problem with unaccountable authority, aside from its moral illegitimacy, is the corruption that such impunity always enables. We see this corrosive tendency embodied by the Trump administration in episodes far too numerous to recite here — and especially in the president himself, already an unindicted conspirator (“Individual 1”) in federal crimes that sent his former lawyer to prison. In the pages of the Mueller Report and in his response to that document, we see a president trying to escape responsibility for crimes that the special counsel shows he committed. He is seeking to cover up those offenses by concealing evidence and resisting oversight.
So troubling is Trump’s criminal liability that former federal prosecutors have protested en masse in a published letter that, at last count, had been signed by over 700 veterans of the Justice Department. They are a nonpartisan cohort, including Republicans and Democrats who served presidents of both parties. Their message is that were Trump not protected by department policy that prohibits criminal prosecution of a sitting president, he would have been indicted by now.
In a telling moment during his Senate testimony last week, Barr articulated the Trump White House retort. None of the president’s overt acts to curtail the Russia probe were crimes of obstruction, claimed Barr, because he possesses the inherent power to end an investigation that he considers unfair or unfounded.
Not since Richard Nixon declared “if the president does it, it isn’t a crime” have Americans heard such a crude assertion of absolute power. Not only is the president above the law, according to Barr’s claim; he is the law and state.
Over the years we have seen Republicans attempt to construct intellectual justifications for absolute executive power, especially during the presidency of George W. Bush in the aftermath of 9/11. Under the shadow of a real national emergency, Justice Department lawyers sought to endow the president with authority to override Constitutional protections, international treaties, human rights, and the separation of powers. Justification for these infringements supposedly existed under a theory titled “the unitary presidency.”
The most memorable citation of that theory can be found in the infamous “torture memo” written by a Justice Department lawyer named John Yoo, which said the president can order interrogation methods that break laws and treaties. Today, Yoo is a law professor at the University of California. He still upholds the unitary presidency, but recently told National Public Radio that he worries Trump is turning into Nixon. And he isn’t the only conservative lawyer appalled by a president running amok.
Yoo and his colleagues bear no small responsibility for the current crisis, but that’s beside the point. They are confronting a monster they helped to make — and we all should heed their warnings.