CSC: Trump and the Expansion of Presidential Powers, an Interview with Chris Edelson

The Cultural Studies PhD program’s student/faculty Colloquium series features regular presentations by prominent interdisciplinary scholars. A Cultural Studies PhD student interviewed Chris Edelson, who spoke on Trump and presidential powers. Edelson's work focuses on presidential national security power under the U.S. Constitution.

What, in your teaching or legal experience, first led you to being interested in researching presidential emergency power in the US?

For starters, as a kid, I was really interested in history. The kind of books I read were about military history and the U.S. presidency, and I remember especially being interested when I was a kid in World War II. I was interested in what was it about the United States that, at least in theory, could stop somebody like a Hitler from coming to power. How do you stop that, or how does the U.S. constitutional system protect against that? And I think as a kid, I thought about it as an automatic thing, like if something happens the system will automatically kick in, which obviously is not correct and is an important thing to be aware of. So as a kid those are some of the things I was interested in.

Then, I was living in New York on September 11th, I was practicing law at the time, and after the attacks I remember the Bush administration was making specific arguments about things that needed to be done, and they were saying it was justified by historical precedent. They said, “Well, Lincoln used military tribunals so we can do the same thing. We can do what’s necessary to defend the nation.” So I was interested in what was happening, and I had studied constitutional law in law school, and started doing some research, started doing some writing about it, and that led to the first book I wrote.

The first book I wrote was a history of emergency presidential power, and the impetus for it was to understand, after September 11th, what presidents were doing, starting with Bush and then by the time I wrote it, Obama was president, too. What they were doing, what their arguments were, whether they could be justified under the constitution, whether it was similar to what other presidents had done and if it was, was it legitimate? So that’s what led me to those kinds of issues.

You have written two books about this topic, can you briefly describe what you see as the changes in Presidential Power in the 21st century?

The Korean War changed the way that presidents claimed authority in the context of national security and emergencies starting with Truman going to war in Korea unilaterally, and Congress deferring to that. Since then, presidents have claimed the authority to use military force unilaterally in ways that weren’t done before Korea. A number of presidents since Truman, the first president Bush in Panama, Reagan in Grenada, Clinton in Yugoslavia and Serbia, have done this, and then after September 11th it went to a new level. It hadn’t been done before Korea, but Congress was kind of allowing it to happen.

After September 11th, the Bush administration pushed this to new areas. A really key point to understand what they were talking about is the Unitary Executive Theory. It originated in the 1980s, although presidents had made arguments like this before, they just didn’t call it the same thing. The Unitary Executive Theory is basically an idea that under the Constitution, the president has the executive power. That means anything a president can conceive of as executive power, and if congress passes a law or if the court takes an action that, in the president’s view, infringes on presidential power, the president can set it aside. This is basically the argument Nixon made when he argued that he didn’t have to turn over tapes to the court. What’s different is that in the past those arguments were rejected, after September 11th they were made secretly and when they came to light it was controversial, but there weren’t real consequences. The Office of Legal Counsel used it to justify, not just the plenary use of military force which they didn’t need because Congress did authorize the wars in Iraq and Afghanistan, but in other areas, for instance, to justify warrantless surveillance or torture or the detention system at Guantanamo. These are all things that required setting aside criminal laws which is a pretty extraordinary thing.

When Obama ran for president, by that time, this was publicly known, and Obama said all of that is a mistake; the president doesn’t have that kind of authority. If the president is going to war, the president needs to go to Congress first; the president should not be operating outside the law. But as president though, this is the second book I wrote, I argue that Obama did not make a decisive break from the Bush approach. So, I think, as a candidate he rightly said, ‘Hey, the president has to abide by the rule of law. It’s dangerous if the president doesn’t.’ As president, in a number of significant ways, most centrally involved in the use of military force in Libya and against ISIS, he did not follow his own advice and I think that creates a dangerous precedent.

Now, you’ve got the Trump administration, which is an administration that’s different from either Bush or Obama in its authoritarian impulses. A whole different level of not recognizing legal limits on power, and now the Trump administration has these precedents to use to justify, for instance, the use of military force which the administration did in Syria earlier this year and, of course now, the debate over North Korea where they might take the same approach. The key question is what will Congress do? My concern right now watching congress is that they are deferring, as they’ve done, not always, but for the most part in the past.

How do you see President Trump fitting in to this arc?

It’s something different. Bush and Obama both did things that challenged the rule of law, but there were ways in which they were limited. There were ways in which they found ways around legal limits, too, but I don’t think it’s fair to describe either of them as authoritarian. They didn’t claim the authority to operate in broad regard without respect to the rule of law, and the reason I’m being careful there is sometimes they did, but not comprehensively. The Trump administration is doing it in so many more areas. The use of military force is one, but it just goes across the board when it comes to dealing with the press, or dealing with dissent. It’s not an administration that seems to acknowledge the limits of the constitution in lots of areas. The kleptocracy concerns, Donald Trump made a statement at one point, just after the election, he said by definition the president can’t have conflicts of interests. Which reminded me of Nixon’s statement when he was interviewed by David Frost, when he said that when the president does something it’s not illegal. These are things that I don’t think have been seen before in American history. The closest comparison I can make is some of the things that Nixon did, Nixon did make a lot of claims like this, but the difference is that a lot of the things that Nixon did were secret, and when they came to light, it was a big controversy. Donald Trump does these things publicly, and I think his approach is ‘I’m going to do these things, is anyone going to stop me?’

Jack Goldsmith, who is a law professor and served in the Bush administration, thinks that so far checks and balances are working. And you can point to some examples. The courts did reject the travel ban, Congress did pass a law requiring the president to impose sanctions on Russia, although it’s not clear he’s followed it yet. My own view is that I’m concerned about it, but it’s too early to tell.

One thing that interests me about history is that it’s contingent. You don’t know at the time which way it’s going to go. In retrospect, you read about the Civil War or World War II and think ‘of course it went this way, this is how it had to happen: slavery couldn’t continue, Hitler couldn’t win.’ But you don’t know that at the time, and living through what’s happening now, Trump isn’t Hitler, but there is a real threat to constitutional democracy and it’s just not clear which way it’s going to go. I find that very personally difficult day to day, trying to grapple with that, but one thing that heartens me is that this isn’t a partisan issue, it shouldn’t be, and there are lots of Republicans who recognize this including most recently, Senator Corker who made some really extraordinary statements earlier this week. At first I thought he was joking, but I think he meant it literally when he referred to the White House as an adult day care center, and I think he was saying there is someone watching the president, and he said he’s worried the president might take the country to World War III. My point is, to see a Republican in the senate saying that gives me hope that there could be effective limits on power, but it remains to be seen. We can’t know for sure.

Is this the beginning of a larger trend of both houses of Congress standing up to the President or is this simply them showing their true colors when they are personally attacked by him?

There have only been a handful of people who’ve done this. Corker, of course, is retiring from the senate. John McCain was just elected. There might be special reasons for why they feel emboldened. Charlie Dent, a Congressman from Pennsylvania echoed what Corker said, but he is also retiring. What Corker said, without naming people specifically, is that basically all the other Republicans in the Senate agree with him and they are concerned about the same kind of things. If that’s true they have not said so.

The best people I’ve seen who’ve responded to these issues are Republicans and conservatives who are not in office. People like David Frum, Ana Navarro, Jennifer Rubin, Evan McMullin. They’ve been the most clear-eyed about it. These are people who are Republicans and conservatives who are saying that these are not partisan issues. We have a constitutional democracy, but it’s not going to function automatically. The people in office are making statements, but are there actions backing it up? It’s a fair question to ask, but the statements they are making are pretty extraordinary, it’s not typically something you see with an administration, and there have been actions like the Russia sanctions bill, etc, but as with all of this, it’s something we’ll just have to wait and see.

There have been a number of think pieces in the last year comparing Donald Trump’s behavior to that of Richard Nixon. What commonalities do you see between the Trump administration and the Nixon administration, or is there a more appropriate historical comparison to be made?

I think Nixon is the one who comes to mind first. Other presidents have done some individual things that might be similar, but Nixon is the closest one that I can think of. The things that jump out to me are, first of all the way Nixon defined presidential power. Nixon claimed that the president represented the people, the only person who represented the people. For Nixon, if you were opposing him, you were opposing the people of the United States and the constitution itself. That was how he justified taking illegal actions like wiretapping of his political opponents. I think that President Trump has a similar view of the presidency. Nixon clearly believed that his actions were justified because he was not subject to the law. I’ve seen that with Donald Trump going back to his candidacy. The Access Hollywood tape, which rightly got a lot of attention because of how shocking it was with him bragging about sexual assault, was really interesting, and one thing that struck me about the tape is when he said “when you’re a star, they let you do it.” I wrote a piece about this at the time where I said, if he thinks this as a celebrity, what would that mean as president? This is a guy who doesn’t think the rules apply to him. This is an administration that doesn’t feel governed or limited by rules, including laws, but also norms. I think that he thinks those things don’t apply to him, and that’s something that reminds me a lot of Nixon.

Some differences, I mentioned before, most of the illegal things that Nixon was doing were secret. With Donald Trump some of it may be, we obviously don’t know if it is secret, but a lot of it’s done openly and publicly, and in some ways that concerns me more. I mentioned before that his attitude is ‘I’m going to do these things, and is anyone going to stop me?’ it’s basically a bullying attitude, and when people don’t I think that that emboldens him to do more.

All American presidents inevitably change the office in one way or another. Thinking ahead to 2020 or 2024, how do you see the Trump presidency changing executive power?

I would say there are a few different directions it could go in. If Donald Trump is able to do what he’s doing and does not pay any penalty for that, I would expect him to continue. Will future presidents? The question would really be a matter of discretion which worries me. Bush and Obama did certain things that challenged the rule of law, and they claimed the ability to do this in ways that I think were not legitimate. They didn’t go as far as Trump, but the only thing that limited them was their own discretion. I think that’s a dangerous part of the post-9/11 presidency whether it’s Bush, Obama or Trump who is of a different nature. The principle we’re seeing set down is that it’s up to the president to define the limits of presidential power, and I think that is a dangerous principle. For future presidents, if there’s no consequence for that I think it would depend on the specific person as to what they would do.

If there is a meaningful limit then I think we could expect something like the post-Nixon presidency where there’s a period of limits on presidential power. Let’s say, Donald Trump is limited in some meaningful way, which might include removal from office, or being forced to divest from his businesses, or forced to release his tax returns in 2020. I would expect there to be some people who believe that new limits are good to rein in executive power, but there may also be some people who will wonder if we’ve gone too far.

Ultimately it comes down to: how much do we trust any one person? After the Civil War, after Lincoln’s assassination, there was a case in the Supreme Court involving a man from Indiana named Lambdin Milligan who was accused of plotting with the South to stage an uprising within the North. He kidnapped the governor of Indiana, freed Confederate prisoners. He was captured and tried by a military tribunal, and had been sentenced to be executed. The case was decided in 1866, and the Supreme Court said that they didn’t think the president could do this; a citizen could not be tried in a military court while civilian courts were still available. Their argument was that while they may have trusted Lincoln, who had recently been assassinated, to not abuse his power, not every president was going to be a Lincoln or a Washington. I think that’s an important point that should be learned today with the Post 9/11 presidency. You might trust Bush or Obama, or even Trump, but would you trust anyone with that power. If there’s no change in course, we’re headed for a system where the president decides what their power is, which is moving away from a constitutional democracy to a system that the framers of the constitution explicitly rejected.