Executive Power Grabs

Executive Power Grabs

[This is part of our Trump’s Threat to Democracy project.]

From the Protect Democracy Executive Power Grabs Page

[Go to the page to see election-security measures they are working on.]
[I inserted the numbers and refer to them in the below supporting documentation.]

“A strong democracy depends upon the separation of powers within government. When the system works properly, the legislature and courts prevent the executive branch from amassing too much power. This balance has shifted in recent years, with (2) Congress abdicating its role, and President Trump is now undermining checks and balances by (1) attacking the judiciary, (2) withholding information from Congress, and (3) punishing states that have opposed his policies. We are working to maintain a strong separation of powers, and fight executive power grabs.”

1.

Brennan Center Article with “… examples of Trump’s public statements attacking individual judges and questioning the constitutional authority of the judiciary …”

Trump’s Twitter on Feb 24, 2020:
[“Sotomayor accuses GOP appointed Justices of being biased in favor of Trump.” @IngrahamAngle @FoxNews This is a terrible thing to say. Trying to “shame” some into voting her way? She never criticized Justice Ginsberg when she called me a “faker”. Both should recuse themselves..

….on all Trump, or Trump related, matters! While “elections have consequences”, I only ask for fairness, especially when it comes to decisions made by the United States Supreme Court!]

That’s the first example.
The page is very long.

Executive summary of Alliance for Justice’s Trump’s attacks on our justice system from 1/14/2020:

“Today, Alliance for Justice releases its comprehensive report Trump’s Attacks on Our Justice System: 2017–2019, cataloguing the unprecedented number of judges Trump has appointed, their ultraconservative views, and the various norms Senate Republicans have abandoned to fast-track these confirmations.

“The numbers tell the story. Compared to Obama’s first three years in office, Trump has appointed as many Supreme Court justices (two), twice as many appeals court judges (50 vs. 25), and significantly more district court judges (133 vs. 97). In fact, the Senate confirmed 80 district court nominees just this past year. Trump has already flipped three circuit courts of appeals.”

The executive summary also discusses the litmus tests Trump applies (a willingness to gut the Affordable Care Act, etc)

Trump is at war with the whole idea of an independent judiciary by Garrett Epps (Professor of constitutional law at the University of Baltimore) for the Atlantic on 3/4/2020:

“He is at swords’ points with the federal courts generally, with individual judges who have displeased him, with private citizens who as jurors defy his preferences, and now with the Supreme Court.”

The author gives many examples like these two beginning ones:

“The war goes back years. Even before he was elected president, Trump attacked Gonzalo P. Curiel, the trial judge in a civil-fraud case against Trump University, as a ‘Mexican judge’ who should not be permitted to hear cases about Trump, because ‘I’m building a wall.’ (Curiel was born in Indiana.) When Judge James Robart of the Western District of Washington halted Trump’s first travel ban, the president dismissed him as a so-called judge,’ and when the Ninth Circuit agreed with Robart, the president actually threatened to dismantle that court.”

Per Epps, Trump is clearly seeking to intimidate the courts into doing his bidding: “… both judge and jury; participants in the nominally independent judicial process must now fear not only his criticism but threats or even violence from his supporters.”

“This is, in historical terms, unheard of. The worst that Jefferson did to hostile Federalist judges was support their impeachment—an entirely constitutional process that was soon abandoned as unprincipled. Roosevelt sought to pack the Court but studiously refrained from calling out its individual members.”

2.

Congress has lost its power over Trump [Kim Wehle for the Atlantic on 2/4/2020]

The setting is Trump’s impeachment trial. The author quotes defense attorney Patrick Philbin: “Congress has numerous political tools it can use in battles with the executive branch—appropriations, legislation, nominations, and potentially in some circumstances even impeachment.”

Wehle argues that (in Feb 2020) Congress is about to abdicate its responsibility by acquitting Trump “despite ample evidence of serious misconduct” and has effectively no tools left to rein Trump in.

She goes through each one of Philbin’s listed tools with which the legislative can control the executive:

a. Appropriations (power over spending).
Here she sites the (nonpartisan) Government Accountability Office’s finding that Trump violated the law by withholding $391 of aid from Ukraine after the Senate had approved the aid.

“With an impending acquittal, the Senate is saying to Trump and all future presidents that they can ignore Congress’s appropriations decisions without consequence. Trump can withhold or spend money as he likes—even if Congress has already said otherwise.”

She also cites Trump taking money that Congress had not earmarked for his border wall project and using it for his border wall project (this after Congress had refused to give him the funds he’d requested for his border wall project).

b. legislation (power to make laws)

Congress has the power to make laws and it is the executive branch’s job to enforce the laws congress makes. She argues that in the Ukraine-aid case, Trump “treated the Impoundment Control Act as optional—not binding.”

Another example: “Trump’s team kept the whistle-blower complaint from Congress as well, despite a clear statutory obligation to hand it over.”

[In the above quote, the author links to a letter from the House Intelligence Committee, stating that the Acting Director of National Intelligence was required to hand over the whistle-blower complaint no later than 9/2/2019.
Here’s a PBS article from November 27, 2019 dealing with the issue: Trump was briefed on whistle-blower complaint before Ukraine aid was released]

c. nominations

Congress has the power to refuse a president’s nominations for federal offices and judgeships.
The author points out that Trump has repeatedly circumvented that process.
She sites the case of Rudy Giuliani: “A former New York mayor serving as the president’s private lawyer, Giuliani conducted foreign policy in Ukraine on Trump’s behalf without enduring the confirmation process or even going under contract with the U.S. government.”

Trump also perverts the will of Congress by refusing to fill vacancies: “leaving the Federal Election Commission unable to take any enforcement actions for violations of federal campaign laws in the lead-up to the 2020 election, for example.” Then there’s his practice of filling key positions with temporary appointees, not subject to Senate review and confirmation.”including giving Mick Mulvaney the dual titles of acting White House chief of staff and acting director of the Consumer Financial Protection Bureau. Of course, Trump isn’t the first president to appoint acting officials. But he has explicitly defended his extensive use of this stopgap tool because of the flexibility it gives him.”

[See also the “Also from this article” section at the end of #3 below]

3.

Trump escalating his war on blue America by Ronald Brownstein for the Atlantic on May 14, 2020

“Long before the outbreak started, Trump pursued a broad array of policies meant to pressure or punish Democratic-run local governments, such as ending the federal deductibility of state and local taxes in the 2017 tax bill and seeking to revoke the authority California has wielded under the Clean Air Act since the 1970s to set its own air-pollution standards.”

Trump’s argued that blue states and cities have to make concessions in exchange for life-saving corona-aid from the federal government–requirements such as: “states and cities to cut taxes; indemnify businesses from coronavirus-related lawsuits; end sanctuary-city policies in locales that don’t readily cooperate with immigration authorities; and adopt other conservative priorities.” [here the author links to Trump’s twitter feed.

“Standing at the White House podium, he famously acknowledged that he had told Vice President Mike Pence not to return calls for help from governors who have criticized him. He’s repeatedly encouraged the ‘liberate’ protesters, primarily targeting Democratic governors.”

And so on.

Also from this article:

“Trump’s announcement last week that he would not allow Anthony Fauci or other administration experts to testify before Congress—because ‘the House is a bunch of Trump haters’—followed the similar defiance he displayed during the impeachment inquiry.”

“Most sweepingly, Barr’s decision to drop charges against Michael Flynn, the former Trump national-security aide who admitted to lying to federal investigators, marked another step in the attorney general’s long campaign to discredit the investigation of possible collusion between Russia and the 2016 Trump campaign.”

“Barr has assembled copious legal theories to support each element of his campaign. But what binds it together is the delegitimization of any oversight of the president, especially from institutions controlled by members of the opposite party. ‘This whole pattern of events is a systematic effort to cut off all meaningful checks and balances,” Donald B. Ayer, the former deputy attorney general under George H. W. Bush, told me. “If you look at each piece in isolation, then you misunderstand what is going on.’”

Articles to read later:
Reason.com: Did Trump just admit to withholding information from the impeachment process
Brookings.edu: All the Presidents Privileges
Lawfareblog: discussion of charges of obstruction of Congress in Trump’s impeachment process

[This is part of our Trump’s Threat to Democracy project.]

[NYC Journal – Politics Page]

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