Last week, Trump exercised his informal authority through his bully pulpit to encourage his supporters to interfere with Congress’s counting of electoral college voters. Without slighting the tragedy that ensued, it is worth emphasizing how much worse it could have been had the president invoked the formal legal powers at his beck and call. It remains a live risk that he uses those powers now. And this situation should cause Congress and the courts to rethink just how much power they have granted the president.
In his last days in office, Trump has potent tools that might be wielded against the republic — or that could lead to destabilizing international conflict. The statutes setting forth the military chain of command, for example, vest him with unyielding authority relative to his secretary of defense — who is in this case a loyalist serving as acting secretary (Christopher C. Miller). While soldiers are not required to follow unlawful orders, officers have always been exceedingly leery of claiming broad power to second-guess the legality of civilian instructions. A rightful safeguard of civilian control over the military in ordinary times, such deference, could have very different implications for the next week. It is not hard to imagine the White House ordering, say, a plainly unlawful military action against Iran. Imagine a targeted killing such as that of Qasem Soleimani, but with an even thinner legal justification. Or consider an actual incursion onto Iranian soil in violation of U.S. and international law.
Congress can be thanked also for a series of Insurrection Acts that assign broad authority to the president to decide whether to deploy military force within our borders. One provision gives the president power to call out troops if some “unlawful combination” or “conspiracy … opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” These provisions, critically, vest the president with broad power to make factual determinations of when such a “conspiracy” exists. And while Congress in 1948 barred troop deployments at polling places during elections, there are few other formal restrictions on the power to quash “insurrections.”
After June’s events in Lafayette Square, in which National Guard and U.S. Park police violently cleared peaceful protesters to enable a political stunt, it is all too easy to imagine how Trump might misuse these powers.
But these are not the limit of disquieting presidential authorities: There is also the president’s sweeping control over federal criminal indictments. Thoughtful commentators have observed that a president would be “well within his legal rights” to “directly instruct” the attorney general not to prosecute a specific individual. This may one day mean that President-elect Joe Biden might intervene in a decision not to charge Trump after he leaves office. But today there is at least a question whether a president can order his acting attorney general to prosecute specific people. It’s not all that hard to imagine this norm-defying president from ordering prosecutions of Biden or Harris with the manifest intention of derailing inauguration. After all, he has threatened to use the prosecution power against political enemies for years now.
In addition to Congress’s ceding of powers to the president, the Supreme Court has increasingly come to associate democracy with presidential potency. It has suggested that “democratic governance” is possible only if the president has unfettered authority over executive-branch subordinates, for example. Whatever the merits of that view in ordinary times, it is highly disconcerting at the present moment.
There have long been calls for the House and Senate to rein in these powers, yet our representatives have not acted. After last week’s riot at the Capitol, however, there may well be veto-proof supermajorities to limit any one of these authorities by way of statute (though not before the inauguration) — and this could have lasting salutary effects. Limiting the insurrection power would prevent a reoccurrence of the events of Lafayette Square under a future president. Congress could define with precision the triggers that allowed the use of troops around political protests, and in relation to the workings of democratic institutions. Congress could also limit deployments of non-emergency military force in the lame duck period after an election.
For obvious reasons, the debate this week has been about Trump’s personal irresponsibility and individual acts — not the legal structures that help underpin his threat to democratic order. And these structures cannot be changed at a moment’s notice. So for the next week we are thrown back upon the good conscience of the men and women who might receive anti-democratic orders. The orders that will imperil the republic will not be illegal in the sense that they assert powers that do not exist; rather, they will be illegal in the sense that they will turn on false factual claims — the lie of the stolen election, the fable of the anti-Trump “deep state,” the fabrication of crimes by a political opponent.
Although we cannot be certain, there is some reason for guarded optimism that people will refuse any illegal orders. Rep. Elise Slotkin (D-Mich.) recounted that on Wednesday, when the administration authorized the belated deployment of National Guard to the Capitol, “the Chairman and the acting Secretary of Defense did not ask the Commander in Chief for advice. They discussed it with the Vice President and made their call.” We will all watch anxiously in hopes such good sense prevails for long enough for the proximate crisis to pass. After that, more robust safeguards against a potential rogue president can be installed.