How did Trump get the idea he has powers that allow him to fire anyone, even for an illegal reason (e.g., a bribe)? We’re only talking about self-pardon (Trump tweeted this morning, “I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?”) because Republicans were largely indifferent to pardons of cronies such as Joe Arpaio and right-wing race-monger Dinesh D’Souza. When reports suggested that the president’s team might have dangled pardons in front of key witnesses, you did not see Republicans in Congress leap to object.
To be sure, Democrats are speaking up. “Donald in Wonderland: through a legal looking glass, no President can be prosecuted because whatever he says is the law. Too absurd even for fiction. In fact, no one is above the law,” tweeted Sen. Richard Blumenthal (D-Conn.). In a similar vein, the ranking Democrat on the House Intelligence Committee, Rep. Adam B. Schiff (D-Calif.), pointed out, “The President’s legal arguments would render whole sections of the Constitution moot, and allow a president to engage in any form of criminality and obstruct an investigation into his own wrongdoing. Nobody is above the law. Not this President. Not any president.”
However, we have yet to hear from prominent Republican leaders, even those claiming their fidelity to an originalist version of the Constitution. Where, for that matter, are staunch conservatives such as Sen. Ted Cruz (R-Tex.), who warned that without a GOP president, the Constitution would be eviscerated? Also mute is the legal group that once believed in limiting the executive’s powers. (Politico noted that Kellyanne Conway’s husband, George Conway, has been tweeting anti-Trump observations in protest of “the silence of his fellow Federalist Society members—the elite, conservative lawyers who have generally chosen to give Trump a pass on his breaches of long-cherished legal norms and traditions in exchange for the gift of Supreme Court Justice Neil Gorsuch.”)
Ian Bassin, who leads the nonpartisan Protect Democracy group, has rightly exhorted conservatives who believe in the unitary executive (the president has full authority over the executive branch) to be “very public and clear that the theory is not a license to presidents to obstruct justice, and that if one does, impeachment is a proper remedy.”
The failure of Republicans, even those considered constitutional sticklers, to balk at Trump’s increasingly outrageous claims goes back the GOP original sin in 2016 — sticking by Trump because of the notion he could deliver on taxes or appoint conservative judges. As to the latter, the purpose of such appointments was supposedly to preserve our constitutional system, a proper balance between the branches and some sense of limited government. But Trump has trashed all of that — and conservative legal mavens have shuffled their feet, mumbled “But Gorsuch!” and insisted nothing matters because Trump’s tweets don’t count as presidential acts. One wonders if they’d ever wake up — if he confessed to firing FBI Director James B. Comey to stop the Russia investigation? If he destroyed evidence of collusion? If he defied a court order to appear before a grand jury?
You now hear pundits from purportedly respectable publications arguing the president cannot do something illegal if it’s within an exercise of his powers. Really — he could accept a bribe to pardon someone? He could violate the law against torture by ordering the military to torture? “I think the core condition in that memo is correct. I do not believe a president of the United States can commit obstruction of justice and exercise his lawful powers,” declared Rich Lowry, the editor of National Review. Richard Nixon, who intoned, “When the president does it, it’s not illegal,” would approve.
One can only imagine the howls from Republicans if President Barack Obama claimed that sort of unlimited power (say, destroyed documents or fired relevant witnesses in the “Fast and Furious” matter). Actually, you don’t have to imagine. Conservatives repeatedly called out Obama and his administration for allegedly obstructing of justice. When exactly did it become impossible for presidents to obstruct justice?
In short, the reason Trump feels emboldened to make frightful claims of vast executive power is that the constitutional conservatives don’t much care about the Constitution and aren’t conservative in any meaningful sense of the word. Elected Republicans created a constitutional monster — and, along the way, violated their oaths and their moral authority to govern. The larger conservative media have become cheerleaders for an executive power grab they would never tolerate in a Democratic administration. The voters in November will get to decide if that’s the sort of government — absolute power for Republicans — they want.