Behind Trump's stance on executive power, transformed US politics

Evan Vucci/AP
President Trump arrives for a bill-signing ceremony in the South Court Auditorium on the White House campus on May 30, 2018. He recently said he has "absolute right to PARDON myself" but that he has "done nothing wrong" in the Russia probe.

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In recent days President Trump and his lawyers have insisted that the powers of the presidency are pretty expansive. The president can pardon himself, according to Mr. Trump. He can’t obstruct justice. He doesn’t have to talk to special counsel Robert Mueller. The last president to have such a sweeping view of the presidency? Richard Nixon, who said, “When the president does it, that means it is not illegal.” Things didn’t turn out well for President Nixon, of course. But Trump may be insulated from the political ramifications of his opinions and actions in a way Nixon was not. He’s more popular than ever with Republican voters. He’s got a GOP-controlled Congress (for now). Perhaps most important, he’s got Fox News, Sean Hannity, and an organized conservative media. “What Trump has is the ability to reach 30 to 40 percent of the electorate in an unmediated way,” says Brian Balogh, a University of Virginia history professor and co-host of the Backstory history podcast.

Why We Wrote This

President Trump has said that he has the right to pardon himself. The statement shines a light on how much has changed in politics since the last time a president made similar bold claims.

In recent days President Trump and his lawyers have made sweeping assertions about the powers of the presidency, describing a US chief executive unconstrained by political limits accepted in Washington for over 40 years.

The president can pardon himself, according to Mr. Trump. By definition, he or she cannot obstruct justice. The president doesn’t have to talk to special counsel Robert Mueller, even if Mr. Mueller sends the White House a subpoena. The very existence of the special counsel is unconstitutional, Trump claimed on Monday in a tweet. 

It’s an argument concerning authority that sounds a lot like the one made by Richard Nixon. Famously, Mr. Nixon once told a TV interviewer that, “When the president does it, that means it is not illegal.” The executive branch controls the law, so it is the law. One follows the other. Or so the position goes.

Why We Wrote This

President Trump has said that he has the right to pardon himself. The statement shines a light on how much has changed in politics since the last time a president made similar bold claims.

That didn’t work out well for Nixon, of course. He made the “not illegal” comment after Watergate had already forced him from office. And many legal experts don’t accept the details of this position. Self-pardoning, as a power, is hotly debated today.

But Trump is in a very different political environment than was Nixon, and his assertions of authority, grounded in reality or not, may reflect that. He is insulated against the consequence of impeachment in a way Nixon never was. One big reason is the rise and reach of activist conservative media. By asserting sweeping powers, perhaps Trump can bolster his electoral defenses, convincing supporters that the Russia investigation and related attacks on him are illegitimate.

“What Trump has is the ability to reach 30 to 40 percent of the electorate in an unmediated way,” says Brian Balogh, a University of Virginia professor and co-host of the Backstory history podcast. “That allows him to push back on Mueller and others.”

Charles Tasnadi/AP
President Nixon at a March 15, 1973 White House news conference. He said he would not allow his legal counsel, John Dean, to testify on Capitol Hill in the Watergate investigation, and challenged the Senate to test him in the Supreme Court.

In some ways Trump’s is an insulated presidency. That’s easy to miss in Washington, where news alerts on the latest turn of the Mueller case can ping on cell phones across a restaurant dining room, sounding an electronic chorus of media obsession.

But crucially, Trump enjoys solid support from his own party’s voters. A new Gallup poll shows that at 500 days in office he maintains the second-highest “own party” job-approval rating of any president since World War II, behind only George W. Bush (who was boosted by the 9/11 terrorist attacks).

Trump’s approval over time has been very stable, even unusually so, says Nathan Kalmoe, an assistant professor of political communication at Louisiana State University. Political polarization is a big reason for that – his popularity with Republicans contrasts with deep unpopularity among Democrats, and negative ratings from independents.

Also, most voters don’t react to the news alert pings. They make electoral judgments on the state of the economy, how long the incumbent party has been in power, and other general factors.

And support from GOP voters translates into support from GOP politicians in Congress. Republicans control both chambers, for now. While they may lose the House in November, it would take a huge wave for Democrats to retake the Senate.

“President Trump would not be impeached or removed by this Congress given what we know now, and I doubt there would be enough votes in the Senate next year to remove him from office even with Democratic majorities, unless the Mueller investigation reveals some major new evidence implicating Trump personally,” says Dr. Kalmoe by email.

After all, impeachment is not a legal process. It is a political one. Nothing about it is automatic. Mueller’s findings, whatever they are, won’t be a machine setting a congressional impeachment finding in motion. And after impeachment in the House, a two-thirds Senate majority is needed to convict.

“A president might do all kinds of inappropriate things, but if members of Congress don’t want to impeach the president, the president won’t be impeached,” emails Steven White, an assistant professor of political science in the Maxwell School of Citizenship and Public Affairs at Syracuse University.

Legal proceedings are another matter. However, Rudy Giuliani, former New York City mayor and current Trump lawyer, has said that he has been told Mueller will not indict Trump as a sitting president. That follows a current Department of Justice legal opinion holding that a chief executive can’t be indicted while in office.

Trump officials and family members aren’t protected by this opinion. Thus Trump conceivably could end up in Nixon’s position of being named an unindicted co-conspirator while others go on trial. (Nixon chief of staff H.R. Haldeman was convicted and sentenced to 18 months in jail for perjury, conspiracy, and obstruction of justice.)

But perhaps the biggest insulation Trump has that Nixon did not consists of words and pictures. The rise of the conservative media, from Fox News to Rush Limbaugh and other talk hosts plus Breitbart and conservative web sites, is a bulwark that could have whipped up resistance to the Watergate investigatory bodies and personalities of the times. Imagine what a Sean Hannity-style show host might have made of John Dean, the counsel to the president who turned and testified against him in the Senate. “Turncoat” would have only been the starting point.

The role of conservative media in defending Trump is “huge”, says Brian Rosenwald, a political and media historian at the University of Pennsylvania and expert on the political impact of talk radio.

The rise of right-leaning journalists and opinion hosts has enabled Americans to live in echo chambers of their choosing, says Mr. Rosenwald. Much of Trump’s rhetoric is pitched to Fox & Friends viewers and Mr. Hannity’s listeners, not the people who read The New York Times opinion page and listen to “Pod Save the People.”

That allows Trump to easily put his arguments before his most committed defenders.

“It is a huge factor in insulating him. You’ve got a complete alternative reality,” says Rosenwald.

What will happen if the echo chambers collide, so to speak? If Trump insists he can’t be forced to talk, but Mueller issues a subpoena? Or if Mueller issues a report that contains evidence Democrats think is damning, and Congress shrugs?

It’s a possibility. Voters would have to weigh the situation on what they believe to be the merits. We’d have to see what happens.

“I think many reasonable people are awaiting the Mueller report,” says Dr. Balogh of the University of Virginia and Backstory.

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