A single entity personified by the president

Matt Yglesias underlines the dangers in what Trump’s legal muscle says.

The key passage in the memo is one in which Trump’s lawyers argue that not only was there nothing shady going on when FBI Director James Comey got fired there isn’t even any potential shadiness to investigate because the president is allowed to be as shady as he wants to be when it comes to overseeing federal law enforcement. He can fire whoever he wants. Shut down any investigation or open up a new one.

Indeed, the President not only has unfettered statutory and Constitutional authority to terminate the FBI Director, he also has Constitutional authority to direct the Justice Department to open or close an investigation, and, of course, the power to pardon any person before, during, or after an investigation and/or conviction. Put simply, the Constitution leaves no question that the President has exclusive authority over the ultimate conduct and disposition of all criminal investigations and over those executive branch officials responsible for conducting those investigations.

This is a particularly extreme version of the “unitary executive” doctrine that conservative legal scholars sometimes appeal to (especially when there’s a Republican president), drawing on the notion that the executive branch of government — including the federal police agencies and federal prosecutors — are a single entity personified by the president.

What does that sound like? Oh yes, an absolute monarchy. Let’s not go that way.

(Mind you, even Priss Choss would be an improvement on the greedy abusive pig we’re stuck with at the moment.)

But to push that logic into this terrain would not only give the president carte blanche to persecute his enemies but essentially vitiate the idea that there are any enforceable laws at all.

Consider that if the memo is correct, there would be nothing wrong with Trump setting up a booth somewhere in Washington, DC where wealthy individuals could hand checks to Trump, and in exchange Trump would make whatever federal legal trouble they are in go it away. You could call it “The Trump Hotel” or maybe bundle a room to stay in along with the legal impunity.

He’d do it, too. He’d be happy to do it. The checks of course would have to be enormous, but he’d do it.

Of course, as the memo notes, to an extent this kind of power to undermine the rule of law already exists in the form of the essentially unlimited pardon power. This power has never been a good idea and it has been abused in the past by George H.W. Bush to kill the Iran-Contra investigation and by Bill Clinton to win his wife votes in a New York Senate race. Trump has started using the power abusively and capriciously early in his tenure in office in a disturbing way, but has not yet tried to pardon his way out of the Russia investigation in part because there is one important limit on the pardon power — you have to do it in public. The only check on pardons is political, but the political check is quite real (which is why both Bush and Clinton did their mischievous pardons as lame ducks) and the new theory that Trump can simply make whole investigations vanish would eliminate it.

I followed that link on the Bill Clinton item, which was unfamiliar to me, and I’m not convinced…but on the other hand his pardoning of Marc Rich is as disgusting as it ever was, so the point is much the same.

And just imagine what Trump will do with that pardon power if he does get another term and thus as a lame duck doesn’t need to care what the public thinks.

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