What happens if President Trump abuses power?
Story highlights
- Julian Zelizer: Trump could abuse his presidential power
- The media, Congress and the courts need to play roles in not letting that happen, he writes
The
comment instantly recalled the infamous remark that former President
Richard Nixon made to David Frost in 1977, three years after Nixon
resigned in the midst of a scandal. "When the President does it, that
means it is not illegal," he told Frost. Trump's early attitude about
the prestigious office he will hold brings back unsettling memories of
Nixon, who didn't see the boundaries of the institution he governed.
Indeed, the first weeks since the election have raised all sorts of
concerns.
While Trump spent much of his campaign blasting the Clinton Foundation
as some big pay-to-play scheme, Trump has been defiant in his insistence
that he has the right to let his children
run his international business and that he has no plan to create any kind of serious firewall. Ivanka Trump sat in on a
meeting
with the Japanese Prime Minister and there have been numerous reports
that Trump has brought up business issues in his meetings with several
foreign leaders.
Although
he stormed into office promising to drain the swamp, it looks like
Trump might fill the swamp with much more muck than his supporters
expected. Will the White House become the headquarters of Trump Inc.?
Trump has enjoyed free continuous advertising as the media films
potential Cabinet picks coming in and out of his different properties.
Many Americans are surprised to learn that
ethics rules do not create legal prohibitions against the president continuing to conduct his business.
We have learned a great deal about the Imperial Presidency. Now we have the Imperial Marketer.
He
has exhibited a thirst for power in other ways, as well. He lashed out
at the news media, both through Twitter and in person, displaying an
aggressive stance toward the Fourth Estate that could create an
atmosphere of hostility and intimidation that scares reporters about
their jobs. Reporters should feel comfortable pursuing their stories
without fearing that a president will go on a personal twitter attack
against them or create pressure on a news organization to move onto
different subjects.
We can't afford to see the kind of
"Enemies List"
that President Nixon's advisers maintained of opponents, which included
journalists like Daniel Schorr of CBS and columnist Mary McGrory.
Journalists should not encounter hostile crowds who are egged on by a
politician blasting the "rigged media," as occurred in the campaign.
The
editors, producers and owners of the organizations' reporters should
not feel that presidents could possibly make policy decisions that
affect them as retribution for a story.
Given
what we know about Trump, it will be absolutely essential for every
institution which has the responsibility of oversight to fulfill its
mission of being a safeguard against presidential abuse.
The
media will certainly be one central guardian of the public good. When
it does its job well, it can serve as the front line in monitoring
against the abuse of power by leaders in Washington.
CBS's
Edward R. Murrow, one of the greatest journalists of the 1940s and
1950s, famously took on Sen. Joseph McCarthy, who was throwing around
all sorts of accusations about Americans he claimed allegedly working
for the communists. In 1954, using McCarthy's own words against him,
Murrow went on the air to
expose
the senator's lies and contradictions. Washington Post reporters Carl
Bernstein and Bob Woodward became legends in the mid-1970s for their
work uncovering the Watergate scandal and the myriad ways the Nixon
administration broke laws.
In
more recent years, we saw a number of courageous journalists expose the
underside of the war on terrorism, ranging from the use of torture
under President George W. Bush to the intensification of targeted
killings, including the assassination of a US citizen, under President
Obama.
Although the press today
comes under constant attack, many journalists continued to do great work
on the campaign trail. The Washington Post's David Fahrenthold has
published a number of hard-hitting pieces about Trump's questionable philanthropic foundation and CNN's Jake Tapper has engaged in many
hard-hitting interviews with Trump and his supporters about their connections to white nationalists.
Now
that Trump is in power, the press has an enormous set of
responsibilities. They will have to avoid letting the President control
the news story, as often occurred during the campaign, by covering each
one of his controversial tweets and statements. They will have to offer
viewers and readers hard-hitting analysis of the connections between his
business deals and his political decision-making. They will need to
carefully monitor the ways that he employs executive power and remain
firm even if the administration accelerates its attacks on the media.
But
the media cannot do this alone. That's why we have so many institutions
that are responsible for overseeing the executive branch. Congress
can't be passive on this front, even if the Republican majority will
have little interest in causing problems for their own party.
In
addition to the famous Watergate hearings that exposed how the break-in
at the Democratic National Committee headquarters was only the tip of
the iceberg in a White House that saw no limits to its power,
congressional hearings have often been a powerful force for exposing the
wrongdoing of a president.
In 1987, for example, a joint
committee
uncovered the ways in which top members of President Reagan's
administration used the money from arms sales to Iran to finance the
Nicaraguan Contras, despite a congressional ban on doing so. Congress,
of course, reserves the power to impeach the president, and it has
exercised that power several times in US history, most recently with
President Bill Clinton.
Even though
the Republicans control Congress, the congressional minority still has a
bully pulpit and can exert pressure on the GOP to deal with issues that
emerge. They will have to show the same kind of tough stance that
Republicans adopted between 2007 and 2011, when they were in the
minority.
Unless the Republicans
do away with the filibuster altogether, Senate Democrats will still have
leverage in the upper chamber to obtain concessions from Senate
Majority Leader Mitch McConnell.
Given
some of the hesitation about Trump that lingers within his own party,
and will continue, particularly if he backs away from core promises,
Democrats may well exploit these tensions if there is evidence of an
abuse of power. Some Republicans, like Kentucky Sen. Rand Paul, might be
open to working with Democrats on these sorts of issues if evidence
emerges of abuses of power.
There has already been discussion about how the
Emoluments Clause
in the Constitution could become a significant problem for Trump if his
business is compensated for labor or services from companies that are
controlled by foreign governments.
When
President Obama received the Nobel Prize, the Department of Justice
determined that the law applied to the President (though they concluded
he could receive the prize since the Norwegian government did not
control the committee granting it and it was privately financed).
"Whenever Mr. Trump receives anything from a foreign sovereign, to the extent that it's not an arm's length transaction,"
said
one ethics lawyer who worked in the Obama administration, "every dollar
in excess that they pay over the fair market price will be a dollar
paid in violation of the Emoluments Clause and will be a present to Mr.
Trump."
Then there are the courts.
We don't have to look far to see what the courts can do. During the
past eight years, President Obama has learned how powerful they can be
in tying up the executive actions of the commander in chief. Frustrated
with legislative gridlock, President Obama hesitantly turned to the
power of his office to move forward on key issues. He often found
himself checked by the courts.
In June, the Supreme Court announced that it was
deadlocked
on his plan to protect about 5 million undocumented immigrants from
being deported. Their deadlock stopped the plan. "Seldom have the hopes
of so many been crushed by so few words," lamented Walter Dellinger, a
Duke University law professor.
Liberals
will have to replicate the work of conservative organizations that have
been effective at mounting concerted legal challenges against Obama's
efforts to exercise executive power. The courts will have to be
responsive to these concerns. Given that the Supreme Court will likely
tilt back to the right after the first Trump appointment, it will be
incumbent on Chief Justice John Roberts to encourage his colleagues to
be extraordinarily vigilant on this front.
Although the Supreme Court remains without a justice, Obama has had more success
filling the lower courts with appointees more likely to side with stances favored by Democrats.
The
threat of presidential abuse of power is very real with President-elect
Trump. Those fears are not a product of partisan concern, but based on
the words he has used, the threats that he has made against his
opponents, and the general tenor of his comments about the presidency.
As
Trump has said repeatedly, Americans distrust government and they don't
like the way in which politicians abuse their authority. So, given his
own warnings, now is the time to make sure that he does not do more of
the same.
Trump v. the media: is this just the beginning? 09:49Although he stormed into office promising to drain the swamp, it looks like Trump might fill the swamp with much more muck than his supporters expected. Will the White House become the headquarters of Trump Inc.? Trump has enjoyed free continuous advertising as the media films potential Cabinet picks coming in and out of his different properties.Many Americans are surprised to learn that ethics rules do not create legal prohibitions against the president continuing to conduct his business.We have learned a great deal about the Imperial Presidency. Now we have the Imperial Marketer.He has exhibited a thirst for power in other ways, as well. He lashed out at the news media, both through Twitter and in person, displaying an aggressive stance toward the Fourth Estate that could create an atmosphere of hostility and intimidation that scares reporters about their jobs. Reporters should feel comfortable pursuing their stories without fearing that a president will go on a personal twitter attack against them or create pressure on a news organization to move onto different subjects.
Photos: In transition: President-elect Trump
We can't afford to see the kind of "Enemies List" that President Nixon's advisers maintained of opponents, which included journalists like Daniel Schorr of CBS and columnist Mary McGrory. Journalists should not encounter hostile crowds who are egged on by a politician blasting the "rigged media," as occurred in the campaign.The editors, producers and owners of the organizations' reporters should not feel that presidents could possibly make policy decisions that affect them as retribution for a story.Given what we know about Trump, it will be absolutely essential for every institution which has the responsibility of oversight to fulfill its mission of being a safeguard against presidential abuse.The media will certainly be one central guardian of the public good. When it does its job well, it can serve as the front line in monitoring against the abuse of power by leaders in Washington.CBS's Edward R. Murrow, one of the greatest journalists of the 1940s and 1950s, famously took on Sen. Joseph McCarthy, who was throwing around all sorts of accusations about Americans he claimed allegedly working for the communists. In 1954, using McCarthy's own words against him, Murrow went on the air to expose the senator's lies and contradictions. Washington Post reporters Carl Bernstein and Bob Woodward became legends in the mid-1970s for their work uncovering the Watergate scandal and the myriad ways the Nixon administration broke laws.In more recent years, we saw a number of courageous journalists expose the underside of the war on terrorism, ranging from the use of torture under President George W. Bush to the intensification of targeted killings, including the assassination of a US citizen, under President Obama.Although the press today comes under constant attack, many journalists continued to do great work on the campaign trail. The Washington Post's David Fahrenthold has published a number of hard-hitting pieces about Trump's questionable philanthropic foundation and CNN's Jake Tapper has engaged in many hard-hitting interviews with Trump and his supporters about their connections to white nationalists.Now that Trump is in power, the press has an enormous set of responsibilities. They will have to avoid letting the President control the news story, as often occurred during the campaign, by covering each one of his controversial tweets and statements. They will have to offer viewers and readers hard-hitting analysis of the connections between his business deals and his political decision-making. They will need to carefully monitor the ways that he employs executive power and remain firm even if the administration accelerates its attacks on the media.But the media cannot do this alone. That's why we have so many institutions that are responsible for overseeing the executive branch. Congress can't be passive on this front, even if the Republican majority will have little interest in causing problems for their own party.Views on the Trump TransitionDefending Trump to scared liberals
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