Donald Trump continues to test the limits of what’s allowed under the law
In late November, shortly after his election day victory, Donald Trump was fielding questions left and right about his vast business holdings. Reporters and voters alike wanted to know: Would he divest from his own companies before he’s sworn into office? And if not — if his administration is allowed to influence and set policy in a way that enriches himself and his family — doesn’t that constitute a gross conflict of interest?
His boilerplate response, carefully crafted with a team of handpicked legal and political yes men, was straight out of the Nixon playbook: If the president does it, it’s not illegal. That’s the response Trump ally (and now possible candidate for FBI Director) Rudy Giuliani gave CNN’s Jake Tapper in mid-November when asked about Trump’s financial conflicts.
“Well, first of all, you realize that those laws don’t apply to the president, right?” he told Tapper, who had asked if Trump planned to put his holdings in a blind trust. “So, the president doesn’t have to have a blind trust. For some reason, when the law was written, the president was exempt.”
That excuse—that the president hasn’t broken any law—has been trotted out to defend countless other transgressions since taking office. The firings of FBI Director James Comey and acting Attorney General Sally Yates; the continued refusal to release his tax returns, even after taking office; and most recently, the divulgence of classified, code-word clearance information to Russian spies during an Oval Office visit last week. More than vast over-reaching by a clueless buffoon with authoritarian tendencies, all of these incidents have an air of criminality about them.
“It took Richard Nixon almost five years to say ‘I am not a crook,’” said Dr. Allan Lichtman, a presidential historian and professor at American University in Washington, D.C. “It’s taken this administration just a few months.”
Lichtman, one of the few voices who predicted a Trump victory in the 2016 election, released a book last month making the case for impeachment. As he’s quick to point out, illegality is not a prerequisite for impeachment hearings.
“It says monuments about a president when the best you can say is ‘he’s not a crook.’ That’s not exactly a ringing endorsement of a president,” said Lichtman.
Except the thing is, on this point, Donald Trump is technically correct. When it comes to federal ethics rules and other laws, the White House is often exempt from them. Sharing classified information is classic treason if committed by you and I—Trump himself repeatedly suggested Edward Snowden is a traitor for leaking classified information—but the President of the United States is granted the authority to declassify any information he or she sees fit. If the president does it, it’s not illegal.
No, the crisis our country is facing isn’t that the commander in chief feels emboldened to constantly and openly flout the law. It’s actually worse: for the first time in our 240 years, the United States is being forced to consider child-proofing the presidency.
Until Donald Trump bullied and bought his way into the White House, America has never had a president who needed to be told not to leak state secrets to an adversarial government. Presidents didn’t need to be told by a clause in the U.S. code to move their assets to a blind trust; they just did it, because, of course, anything less represents a massive conflict of interest. Every president since Richard Nixon has released his tax returns without complaint.
Donald Trump’s fondness for shunning standard operating procedures has been a selling point among his dwindling group of supporters. He’s not a career politician, they say; of course he’s not going to care about tradition. That’s well and good when talking about something like skipping the White House Correspondents’ Dinner. But when the president abandons diplomatic decorum out of stupidity or carelessness, that undermines America’s standing on the international stage in a way that can’t be so easily repaired.
In the hours after it came out that Trump shared classified intelligence with Russian officials, foreign governments have already started privately questioning the wisdom of sharing sensitive information with the United States, for fear that it will end up in the hands of Russia or anyone else Donald Trump wants to impress. According to the New York Times, the source of the information Trump leaked to Russia was Israel. That information could very well end up in the hands of Iran, which maintains friendly relations with the Russian government but is hostile towards Israel (to say nothing of the United States). In fact, as early as January, before Trump took office, intelligence officials warned Israel not to share sensitive information with Trump for fear that he couldn’t be trusted to act responsibly.
There is good reason to carve out exemptions for the presidency and other elected officials in some federal laws. As ThinkProgress’ Ian Milhiser explained in November, “there are certain decisions that can only be made by the president, and thus if the president were conflicted out the government could be paralyzed.”
But Donald Trump might not give the United States much of a choice in the future. If foreign leaders lose complete faith in the office of the president and cease sharing important intelligence information with the United States own government — and we’re already heading in that direction—they might rightly insist upon some kind of reassurance that the United States has the means to deal with a impotent leader before they resume normal relations.
As for Donald Trump’s legal protections, they only extend so far. He won’t be brought up on charges of treason any time soon, but his office doesn’t entirely shield him from federal law. He was in violation of the emoluments clause from his first day in office; this week, news broke that Trump directly asked former FBI Director James Comey to kill an investigation into Michael Flynn, the ex-NSA head whose backchannel relations with Russia got him fired. Even for a president, that’s potentially obstruction of justice.
For their part, Republicans have been largely unwilling to do anything about the Frankenstein monster they’ve loosed upon the world. Calling for a special prosecutor to investigate any ties to Russia constitutes a daring break from the party line. Even after a week of dizzying scandals and revelations, the best that Sen. John McCain (R-AZ)—a man whose military career Donald Trump mocked—could muster in the immediate aftermath of the news was “we certainly don’t want any president to leak classified information but the president does have the right to do that.”
Time will determine what—if anything—Trump can do lose enough support among Republicans. During the campaign, he said that he could “stand in the middle of Fifth Avenue and shoot somebody, okay, and I wouldn’t lose any voters.” Today, that reads less as a joke, and more as a promise.