It’s fitting that just as Donald Trump passed the 500th day of his despicable presidency, he marked the occasion by tweeting that he is above the law, declaring that he has “the absolute right to PARDON myself.”
This followed a weekend in which The New York Times obtained a January memo from Trump’s lawyers to Robert Mueller, the special counsel, making assertions about presidential power that would have embarrassed Richard Nixon.
Writing of Trump’s alleged attempts to shut down the Russia investigation, his lawyers Jay A. Sekulow and John M. Dowd (who has since resigned) essentially argued that the president cannot obstruct justice, because he is the arbiter of justice. The president’s actions, they wrote, “by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself.”
Another Trump attorney, Rudy Giuliani, drove home the claim of sweeping presidential authority, telling HuffPost that Trump couldn’t be subpoenaed or indicted while in office even if he’d shot the former FBI director James Comey.
The Trump team’s claims are at once audacious and desperate. It’s hard to know whether they represent a bold power grab, or a panicked response to an investigation that is closing in. I suspect the answer is a combination of the two. If Trump is guilty of serious crimes, and Mueller knows it, then Trump’s future hinges on destroying the mechanisms by which a president could be held accountable, even if it means destroying America’s constitutional order.
Whatever Trump does, most Republicans will probably go along with it. In 500 days, Trump has managed to turn much of what remains of his party into an authoritarian cult. Among Republicans, he has an 87 percent approval rating; the only modern Republican president who was more popular with his own party at this point in his term was George W. Bush, and that was mere months after Sept. 11. A recent poll of voters in congressional swing districts found that 71 percent of Republicans “mostly like” Trump’s handling of FBI and criminal justice officials.
Trump has proved, again and again, that he can make his base discard their values out of loyalty to him. He’s gotten conservatives to anathematize the FBI while cheering unilateral concessions to North Korea. He’s rallying Fox News behind the disgraced former Democratic Illinois governor Rod Blagojevich, whose prison sentence he is considering commuting in order to send a message that systematic government corruption isn’t a big deal.
Assuming Giuliani was not simply babbling incoherently, his outlandish hypothetical about shooting Comey could be meant to acculturate Americans to a maximalist version of presidential power. The question of whether a sitting president can be indicted isn’t clear-cut; two opinions written by the Justice Department’s Office of Legal Council say he cannot, but it’s never been directly tested in court. (The same office, incidentally, wrote an opinion saying the president can’t pardon himself.) We can assume that Mueller won’t go against Justice Department guidelines in the Russia investigation, but that’s very different from saying that as long as he’s in office, a president can kill his enemies with impunity.
I asked Bob Bauer, who was Barack Obama’s White House counsel, about Giuliani’s argument. “Why in the world would you decide to invite into the discussion whether the president could murder people and escape indictment for as long as he or she is in office?” he asked. “That’s not where you want to go, because it rubs up so violently against everybody’s intuitions about the presidency and its relationship to the rule of law.”
So why did Giuliani say it? One explanation is that Giuliani is not very good at representing his client’s interest. But another is that his client’s interest lies in bludgeoning our moral intuitions.
Now that Trump and his lawyers have opened the door, expect the president’s supporters to start parroting the idea that, as Nixon put it in an infamous interview, “when the president does it, that means that it is not illegal.” Some, including members of Congress who voted to impeach Bill Clinton for obstructing justice, will insist that presidential obstruction of justice is a contradiction in terms. The inconsistency will not faze them, since the willingness to spout nonsense is part of how they show their fealty to Trump.
After all, as Bauer points out, if they really believed their own theories of presidential power, Obama’s behavior in even the most paranoid right-wing scenarios about the Hillary Clinton email inquiry would be justified. Under Trump’s theory, Bauer said, Obama would have been well within his rights to call the attorney general or the FBI director and simply say, “Lay off her.”
Trump’s power grab could be checked by a Democratic victory in the midterms, or, should Mueller pursue a subpoena against Trump, by the Supreme Court. But justice is very far from guaranteed. We’re 500 days into this waking nightmare of a presidency, and Trump has now claimed the powers of an autocrat. Assuming he serves out his term, there are almost 1,000 days left. It’s hard to imagine what we’ll have gotten used to by the time it’s all over.