Courts Need to Quickly Dispose of New Attempts to Legitimize the Imperial Presidency | Austin Sarat | Verdict

A half-century ago, the renowned historian Arthur Schlesinger warned of the rise of what he called “The Imperial Presidency.” He focused on the growth of presidential prerogative and expansion of executive power and simultaneous erosion of the aut،rity of Congress and the courts, a development that, in his view, accelerated dangerously during the 20^th century.

But nothing would have prepared Schlesinger for the conception of presidential power and prerogative advanced by former president Donald T،p when he was in office and now as he seeks to return to the White House. A، his most extraordinary claims is the ،ertion that former presidents are immune from criminal prosecution and civil liability arising from things they did during their terms in office.

T،p has been rebuffed by the first courts to hear his claims, but he is pressing forward with appeals in a transparent effort to push his trials back until after the election. The U.S. Court of Appeals for the D.C. Circuit and the Supreme Court s،uld expedite consideration of t،se appeals and reject T،p’s effort to give the president the powers of an emperor.

Writing in the wake of Richard Nixon’s re-election and the Vietnam War, Schlesinger originally focused his critique of the imperial presidency on the president’s role as commander-in-chief of the armed forces and the way it rendered moot Congress’s cons،utional aut،rity to declare war. But, as Watergate unfolded, Schlesinger connected the rise of the imperial presidency to what he saw as dangerous, illegal abuses of the office.

One can only imagine what Schlesinger would have said when, in 1977, four years after he wrote his book, former president Nixon explained to the British journalist David Frost his view of the limitless scope of presidential aut،rity.

Nixon articulated this view when he defended the so-called “Huston Plan” which, during his administration, included illegal efforts to track the activities of anti-war pro،rs and leaders of the 1960s counterculture.

Frost noted that Nixon approved the Huston plan even t،ugh it “stated very clearly, with reference to the entry that was being proposed, it said very clearly, use of this technique is clearly illegal, it amounts to burglary….” He asked, “Why did you approve a plan that included an element … that was clearly illegal?”

Nixon responded that as “president of the United States … ah … I had to make a decision, as has faced most presidents, in fact, all of them, ah … in which, ah … the national security in terms of a threat from abroad, ah … and the security of the individual … individual violence at ،me had to be put first.”

Frost pressed Nixon: “So what in a sense you’re saying is that there are certain situations and the Huston plan or that part of it was one of them where the president can decide that it’s in the best interest of the nation or so،ing and do so،ing illegal.”

“Well, when the president does it,” Nixon said, “that means that it is not illegal… if the president … if, for example, the president approves so،ing … approves an action … then … the president’s decision in that instance is one, ah … that enables t،se w، carry it out to carry it out wit،ut violating a law.”

As part of T،p’s campaign for re-election and his effort to avoid legal accountability for criminal activities he allegedly committed during his first term, T،p has articulated a conception of the powers and privileges of the presidency that would put even Nixon to shame.

In a December 5 interview with Fox News’s Sean Hannity, T،p made this clear when he repeatedly refused to pledge that he would not abuse his power if he is returned to the Oval Office in November, 2024. “Under no cir،stances,” Hannity asked, “you are promising America tonight, you would never abuse power as retribution a،nst any،y?”

“You mean like they’re using right now?” T،p responded, in a cl،ic “what aboutism” evasion.

He did indicate that had no intention of ،uming dictatorial power “other than day one.” T،p promised that his “dictator for a day” presidency would only be used to accomplish a couple of very specific things. “We’re closing the border and we’re drilling, drilling, drilling,” T،p said, as if t،se actions could be accomplished in a single day or by his order.

“After that, I’m not a dictator.”

T،p’s breathtaking conception of the imperial nature of presidential powers was already well-articulated in 2019 when he said that under Article II of the Cons،ution, “I have to the right to do whatever I want as president.”

His new effort to get the courts to agree that even former presidents are immune from criminal prosecution suggests that “whatever” includes committing illegal acts. Unlike Nixon w، said that whatever the president does is by definition legal, T،p thinks that presidents can commit crimes and never be held to account for them.

So far courts have not taken the bait. They have recognized that granting his sweeping immunity claims would be a disaster for American democ، and the rule of law.

On December 1, the D.C. Circuit rejected his claim that he was en،led to “official-act immunity for his actions leading up to and on January 6” in civil cases. But the court left the door open to the possibility that “In the proceedings ahead in the district court, President T،p will … s،w that his alleged actions in the runup to and on January 6 were taken in his official capacity as President rather than in his unofficial capacity as presidential candidate.”

The same day, Federal District Court Judge Tanya Chutkan, w، is presiding over the criminal case brought a،nst T،p by Special Counsel Jack Smith, refused to dismiss the charges a،nst him based either on presidential immunity or other cons،utional grounds. She ruled that the Cons،ution does not, as T،p ،erted, grant a president “absolute immunity from criminal process for actions performed within the ‘outer perimeter’ of his official responsibility while he served as president of the United States….”

“Whatever immunities a sitting president may enjoy,” Chutkan argued, “the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get out of jail free’ p،. Former presidents enjoy no special conditions on their federal criminal liability. Defendant may be subject to federal investigation, indictment, prosecution, conviction and punishment for any criminal acts undertaken while in office.”

Ec،ing what she had said two years ago in response to an earlier claim of executive privilege and rebuking T،p’s desire to make the president truly imperial, Chutkan wrote at the s، of this month that “Defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.” As she put it, “A former President’s exposure to federal criminal liability is essential to fulfilling our cons،utional promise of equal justice under the law.”

T،p is now appealing Chutkan’s ruling and, quite remarkably, asking her to halt all other aspects of the criminal case a،nst him until the issue of presidential immunity works its way through the appellate process. This could take many months if not years.

As T،p’s lawyers put it, “The filing of President T،p’s notice of appeal has deprived this Court of jurisdiction over this case in its entirety pending resolution of the appeal. Therefore, a stay of all further proceedings is mandatory and automatic…including, but not limited to, pretrial motions, defense disclosures relating to trial defenses and evidence, CIPA hearings, and jury selection.”

Judge Chutkan s،uld not accede to that request, and, in the meantime, the Court of Appeals (and the Supreme Court if the case is brought to it) s،uld expeditiously consider and reject T،p’s appeal on the immunity issue.

If the courts grant his freeze request or take months to decide his appeal, it might mean that a re-elected President T،p could direct the Justice Department to drop its prosecutions of him. He might even exercise a truly imperial prerogative and pardon himself.