Impeachment Trial

Brookings Register | Honey, we blew up the presidency

FORT LAUDERDALE, Fla. – The primary in this battleground state that has provided a vital margin in two of the five elections this century is about a week away, and already voters here are confronting a new political reality.

It was only three months ago that House Democrats, knowing that the Republican-controlled Senate would resist their impassioned passel of arguments, impeached Donald J. Trump. With an eye on history and the stain their action would put on the president, they hoped to cut Trump down to size. 

Instead, the 45th president is living large.

Large enough to visit Democratic primary states like this one to taunt putative rivals. Large enough to defy Congress and continue building a wall across the Mexican border. Large enough to intervene in Justice Department proceedings. Large enough even to alienate his greatest Cabinet ally, Attorney General William Barr. 

Perhaps even large enough to weather the storm created by Typhoon Coronavirus (and its attendant economic ravages) and defeat whomever the Democrats run against him in the November election.

Less than three decades ago, Time magazine put on its cover a minuscule picture of Bill Clinton with the piercing cover title “The Incredible Shrinking President.” Now Americans are witnessing an incredibly expanding presidency.

“Trump’s repeated efforts to push through his agenda continue the march of expanding presidential power we have seen in recent presidencies,” said Shirley Anne Warshaw, a presidential scholar at Gettysburg College in Pennsylvania. “But what separates Trump from his recent predecessors is the complete disregard for the rule of law.” 

The prospect of impeachment terrified Lyndon Johnson, who as a result dared not stray from his path in Vietnam. The impending impeachment of Richard Nixon sent the embattled president on an alcoholic bender and a diversionary trip to the Middle East. The real impeachment of Bill Clinton, only two decades ago, led the humbled chief executive to assert his sorrow, express his apology and redouble his determination to pass his agenda.

“I want to say again to the American people how profoundly sorry I am for what I said and did to trigger these events, and the great burden they have imposed on the Congress and on the American people,” Clinton said.

Trump, in the identical situation, said he was experiencing a “day of celebration.”

But the Trump mix of what he regarded as his exoneration and what he declared was “celebration” brought on a new burst of aggressiveness – and new challenges to the centuries-old balance of power between the legislative and executive branches.

The president’s assertiveness on his border wall is a prime example. By diverting millions of dollars Congress appropriated for the military to the wall, Trump is contributing to what must now be regarded as the incredible shrinking legislative branch. 

Other presidents have struck at the power of the purse that the American Founders placed squarely in the hands of the Congress; Nixon, for example, was a pioneer in withholding spending that Congress expressly approved. 

But the Nixon action – which bore the term “impoundment” – was different in tone and spirit. He failed to carry out the wishes of Congress, to be sure, but in bridling what he called the “credit-card Congress,” Nixon could cite the discretion of the executive in dispersing funds appropriated by Congress. 

Trump’s initiative has taken the Nixon act to a new level. He can cite national security; that is a handy presidential rationale, used by Dwight Eisenhower, for example, as his explanation for building the interstate highway system that of course has been used primarily by civilians, business and vacationers. 

But both houses of Congress have immigration and border security panels, and by any reasonable reading, the wall comes under their remits.

That is why Republicans joined Democrats in decrying Trump’s action. Though GOP lawmakers defended the president in the impeachment trial that followed the House action, lawmakers of both parties jealously guard the functional prerogatives of the Congress, with spending at the top of those centuries-old rights. 

The Founders may have created the balance of powers, but a series of presidents and lawmakers have created a swing in that balance. 

After the Civil War, the balance alternated between a president, Andrew Johnson, who had his own (lenient) ideas about how to treat the devastated South, and the Radical Republicans, who wanted to punish the defeated Confederacy and extend new rights to the formerly enslaved. That resulted in the impeachment of the 17th president, who was saved from removal from office by a single vote in the Senate.

In the aftermath of the assassination of John F. Kennedy, Johnson, a former Senate majority leader, held sway over Congress and pressed through massive Great Society domestic spending initiatives. But once opposition to the Vietnam War gathered force, Congress reasserted itself. 

The balance wobbled so dramatically during the Nixon administration that by the beginning of the president’s second term, the liberal historian Arthur M. Schlesinger Jr. would publish a book called “The Imperial Presidency.” Congress responded that same year with the War Powers Act, which sharply curtailed the president’s flexibility in projecting American force abroad. 

Now Trump is throwing new challenges to the balance of power – and to its stepchild, the separation of powers. By expressing outrage at last month’s sentencing of Roger Stone, his occasional adviser, he is threatening to wield the power of the pardon. 

That power is specifically granted to him in the Constitution. But a swift expression of it in the wake of Stone’s guilty verdict would create new tensions with another branch of the government: the judiciary.

That is the branch that could adjudicate such a pardon in relation to the constitutional provision giving the president “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The Stone case grows directly out of matters considered during the Trump impeachment. The Constitution does not grant the president room to grant such pardons if he is impeached but not convicted.

Even without considering the Stone matter, Trump has expanded the powers of the executive. A president who does not shrink from expressing his impulses does not make for a shrinking presidency.

David M. Shribman is the former executive editor of the Pittsburgh Post-Gazette. Follow him on Twitter at ShribmanPG.

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