The Biggest Advocates For An Imperial Executive Branch Are Suddenly Freaking Out Over Trump

For many, many years, we've pointed out why there are problems with an executive branch that is too powerful. As we noted, laws should be designed as if the people you trust the least are in power. Of course, in an era of partisan red team/blue team politics, very few people seem to care or listen. Or, worse, their positions on executive power seem to shift based on whether "their guy" is in power or "the other guy" is in power. But in a situation that would be amusing if it weren't quite so terrifying, some of the biggest advocates for expanded executive power are suddenly freaking out about the very thing they helped bring about now that there's a President Trump.

Ryan Lizza, over at the New Yorker, has a post detailing the ways in which Trump could seize more power following a terrorist attack. And there are lots of ways. That, by itself, may be interesting, but what strikes me as even more interesting is that the people who he quotes are some of the very people who helped create this kind of world where the President has almost unlimited power in certain areas.

First up, he quotes Jack Goldsmith. Goldsmith worked for George W. Bush, and while he's positioned himself as having pushed back against executive branch expansion, while he was there he did sign the Office of Legal Counsel memo that enabled the NSA to basically spy on all Americans' internet usage. That memo included the following:

We conclude that in the circumstances of the current armed conflict with al Qaeda, the restrictions set out in FISA, as applied to targeted efforts to intercept the communications of the enemy in order to prevent further armed attacks on the United States, would be an unconstitutional infringement on the constitutionally assigned powers of the President. The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President's exercise of that authority.

And, more recently, Goldsmith has argued that we "need" a more invasive NSA which is crazy.

Yet, now, suddenly he's worried that Trump wants these orders to be struck down so he can blame the courts in the event of any terrorist attack, and then use that to claim more powers:

If Trump loses in court he credibly will say to the American people that he tried and failed to create tighter immigration controls. This will deflect blame for the attack. And it will also help Trump to enhance his power after the attack. After a bad terrorist attack at home, politicians are always under intense pressure to loosen legal constraints. (This was even true for near-misses, such as the failed Underwear bomber, which caused the Obama administration to loosen constraints on its counterterrorism policies in many ways.) Courts feel these pressures, and those pressures will be significantly heightened, and any countervailing tendency to guard against executive overreaction diminished, if courts are widely seen to be responsible for an actual terrorist attack. More broadly, the usual security panic after a bad attack will be enhanced quite a lot-in courts and in Congress-if before the attack legal and judicial constraints are seen to block safety. If Trump assumes that there will be a bad terrorist attack on his watch, blaming judges now will deflect blame and enhance his power more than usual after the next attack.

Yeah, that's why we don't say silly things in OLC memos like "The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President's exercise of that authority."

Next up in Lizza's piece is John Yoo. Yoo, somewhat famously, seemed to have never met an executive power he couldn't justify... until Trump came to power. Yoo, wrote the Bush adminstration's legal justifications for the CIA's torture program after 9/11. He's also argued that the NSA should be given a pass on the 4th Amendment because it takes too long to get a warrant. To him warrantless surveillance is no big deal.

And yet, now suddenly John Yoo is worried about "executive power run amok"?

As an official in the Justice Department, I followed in Hamilton's footsteps, advising that President George W. Bush could take vigorous, perhaps extreme, measures to protect the nation after the Sept. 11 attacks, including invading Afghanistan, opening the Guantinamo detention center and conducting military trials and enhanced interrogation of terrorist leaders. Likewise, I supported President Barack Obama when he drew on this source of constitutional power for drone attacks and foreign electronic surveillance.

But even I have grave concerns about Mr. Trump's uses of presidential power.

During the campaign, Mr. Trump gave little sign that he understood the constitutional roles of the three branches, as when he promised to appoint justices to the Supreme Court who would investigate Hillary Clinton. (Judge Neil M. Gorsuch will not see this as part of his job description.) In his Inaugural Address, Mr. Trump did not acknowledge that his highest responsibility, as demanded by his oath of office, is to "preserve, protect and defend the Constitution." Instead, he declared his duty to represent the wishes of the people and end "American carnage," seemingly without any constitutional restraint.

Yoo goes on to point out a bunch of problems with some of Trump's actions (while admitting that others he finds perfectly fine).

While I guess it's kinda nice that Goldsmith and Yoo are finally recognizing that an all-powerful executive branch is problematic, they don't seem to recognize their own role in shaping that view of a uniquely powerful executive branch. It's time to own it, guys.