The New Yorker’s Jane Mayer has reported that President Trump ordered aides to sue to block the proposed AT&T-Time Warner merger in summer 2017 out of personal animus toward CNN. The episode provides a pristine example of the abuse of the president’s executive powers.
The president’s animus toward CNN is well established. In a pre-inauguration news conference, he refused to take a question from CNN, literally yelling at a CNN reporter, “You are fake news!” and “your organization is terrible.”
If the New Yorker report is accurate, the president’s conduct constituted a flagrant violation of the First Amendment. Trump sought to exploit the executive power — here, the power to determine how and when to enforce the antitrust laws — to punish speakers based on the content of their messages.
We are once again in banana republic territory: The president of the United States may not use the laws of the United States to harass the media based on his personal, petty displeasure with what he views as unwarranted criticism. That’s not how it works here.
As Justice Robert Jackson, writing for the Supreme Court in 1943 in West Virginia State Board of Education v. Barnette, explained, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” Jackson added, “If there are any circumstances which permit an exception, they do not now occur to us.”
Trump’s conduct points to a broader rebuke of the claims of Trump and his circle about the propriety of his conduct in office. A consistent refrain of Trump and his legal defenders — notably Rudolph W. Giuliani and Alan Dershowitz — is that Trump’s conduct is always legal so long as he is acting in an area that the Constitution assigns to the executive’s discretion.
Team Trump has often trotted out this argument, most recently when defending the president’s decision to order a security clearance for son-in-law Jared Kushner over the objections of the intelligence community.
As Dershowitz put it in the context of the president’s power to pardon: “You cannot question a president’s motives when the president acts. If a president pardons, that’s it. If a president fires, that’s it. You can’t go beyond an act and get into his motive or into his intent.”
Under the Dershowitz view, Trump’s discrimination against CNN would be immaterial since the president possesses the power to enforce the antitrust laws. Neither the courts nor the polity could legitimately probe his motives.
In fact, what the CNN case demonstrates is that motives matter. They are pivotal under law and political morality. As Rep. Jerrold Nadler (D-N.Y.), chairman of the House Judiciary Committee, explained: “Look, the president has the right to do a lot of things. But he can abuse his power in doing that. Members of Congress have the right to vote for or against a bill. But if they do so because someone paid them $50,000 to do so, that’s an abuse of power.”
In other words, motives matter. In the criminal law, an actor’s motives frequently mark the border between innocent and criminal conduct. That is true of a schoolteacher, a cop and the president of the United States. Nadler, as the chairman of the House panel overseeing a broad “abuse of power” probe into all things Trump, may have a great deal to say about what constitutes an impeachable offense in the coming weeks and months.
In the political sphere, the CNN episode should, but likely won’t, get the Republican Senate to sit up and take notice. In a sane political system in which accountability mattered, Trump’s flagrant, even triumphant violation of his constitutional oath would constitute an impeachable offense.
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