The authorities Donald Trump has assumed under his broad interpretation of the unitary executive theory, in combination with an excessive use of presidential emergency powers, have stressed to the breaking point the informal girders of the constitutional framework which have informally evolved since World War II to bolster the separation of powers between the three branches of government in ways that the Constitution itself does not.
The growth of the size of the federal government since the Great Depression and New Deal has led to the executive branch having more and larger departments and agencies to oversee. And technological developments since World War II - such as the advent of nuclear weapons, ICBM's and cyberwarfare - have led to the need for strong presidential powers to respond to an imminent attack or to conduct covert military operations regarding both the War on Terror and in the realm of cybersecurity.
Congress has often deferred to the President since the Depression and World War II in ways that it historically had not.
While Presidents have stretched the limits of constitutional boundaries many times over the intervening decades (especially in order to conduct foreign policy under difficult circumstances), they have usually done so with a respect for the powers of the other branches of government; and Presidents and leaders from both parties have risen to the occasion of navigating through the various constitutional challenges of the post-World War II era.
The bipartisan approach of the Republican Party to Richard Nixon's removal from office is commonly cited as an illustration of how the parties came together to counter the overreach of executive power without the country being put through the agony of impeachment.
Less well known is the way the Republicans handled a potential impeachment proceeding against arguably its own party's most revered figure of the last century: President Ronald Reagan.
When the extent of the Reagan administration's involvement in the Iran-Contra affair became clear, a delegation of Republican party leaders went to the White House and delivered an unambiguous message: the activity was unacceptable and needed to be changed. Reagan delivered a speech to the nation that acknowledged accountability for the policy, and then he did something even more important: HE CHANGED THE POLICY.
After going almost a century before our first impeachment of a President, we have in less than the last half century alone initiated or SERIOUSLY contemplated impeachment related activities with associated congressional hearings regarding four Presidents (Nixon, Reagan, Clinton and Trump).
Notice a name that's not on that list: George W. Bush. When voices of the time shouted for retributions against Bush over issues as grave as "lying his way into the Iraq War" and "torturing prisoners," Speaker of the House Nancy Pelosi resisted the impulse from the most strident voices in her own party for his impeachment.
Democratic leaders also made it clear to Bush to not take military action against Iran (as some thought he might, but which he never did).
The responses to Reagan and Bush are examples of leaders from BOTH parties rising above partisanship by resisting impulses to push constitutional conflict to the brink, and of two Presidents who heeded the warnings of Congress and respected it as a coequal branch of government.
Even when the second Bush Administration advanced the unitary executive theory to free itself from restrictions regarding the use of military force and the gathering of intelligence in order to conduct the War on Terror, it did so with a basic respect for the authorities of Congress.
The Supreme Court has executed a delicate balancing act between the branches by being purposely vague concerning certain rulings, particularly regarding operations under the War Powers Act and similar matters, and has tried to let the conflicts between the President and Congress play themselves out without its direct interference.
But the conduct of the Trump administration has stressed these constitutional tensions past their breaking point and led to Trump's impeachment.
The killing of Qasem Soleimani raised the spectre of the President taking further action against Iran in contravention to the War Powers Act. Congressional members expressed exasperation about not being notified in advance about the strike. Republican Senator Mike Lee called the briefing afterwards "insulting and demeaning." Senator Rand Paul called it "an insult to the Constitution."
Donald Trump's propensity to act illicitly and in defiance of traditional political norms were apparent long before the strike on Soleimani - both in the Trump campaign activities that led to the Mueller investigation, and in his reaction to the investigation's report afterwards.
The Mueller report detailed "over 100 contacts between Trump campaign advisors and individuals affiliated with the Russian government," and as many as eleven occurrences of the Trump Administration impeding a fuller investigation into such matters. The report cited: witnesses deleting electronic communications, and using encrypted or self-destructing messaging apps; individuals invoking the Fifth Amendment or privileges against full testimony as "attorneys" or "members of the media"; screening of information from investigators due to "legal privilege"; and incomplete and even false testimony from witnesses (some of which led to prison sentences).
Mueller only looked into the CRIMINAL category of conspiracy between the Trump campaign and Russia and did not actually look into "collusion" because in its own words collusion "is not a specific offense ... found in the United States code." Therefore, the investigation could neither accuse nor exonerate the President regarding "collusion."
And regarding obstruction of justice, the report "[did] not conclude that the President committed a crime, [and] it also [did] not exonerate him" and left the matter open for interpretation and resolution by Congress.
As Mueller later said, "If we had had confidence that the president clearly did not commit a crime, we would have said so."
Yet, Attorney General Barr's summary of the report's results was parroted by Trump and amplified into a false "no collusion, no obstruction" mantra of exoneration.
Regardless of how Mueller phrased it, there was an extremely suspicious and significant amount of "coordination" between the Trump campaign and Russia, and an intense amount of obstruction (in the non-legal sense of the word) that frustrated looking into that coordination.
A question Mueller was never pressed to clarify fully enough (and should have been) is: "Did the obstruction detailed in the report prevent you from following a trail of evidence that would have POTENTIALLY led to defining what the Trump campaign or administration did in connection with Russia as 'criminal'?"
The administration was emboldened by the apparent success of the "no collusion, no obstruction" mantra; and shortly afterwards initiated its contacts with Ukraine regarding the Bidens, and began an assault on the Justice Department and other vital organs of government.
The Ukraine initiative was done COVERTLY (instead of through proper legal channels), with suspicious "national security" justifications for the action itself, as well as for the classification of documents related to it; involved interactions with foreign governments; and required a whistle blower, law enforcement, foreign service officers and intelligence officials to expose it.
The administration subsequently frustrated the House's impeachment investigation regarding Ukraine by delaying the process and withholding witnesses and documents in the same way it did during Mueller's investigation and continued its onslaught against the country's legal and judicial institutions.
It had been rumored for months that Trump and Attorney General Barr had been tampering with the New York Southern District in order to stop investigations into Trump's businesses, family and friends. Geoffrey Berman had been overseeing these investigations and those into Rudy Giuliani's connections to indicted actors in the Ukraine matters as United States Attorney from the Southern District. The administration tried to covertly remove Berman - late on a Friday night with a press release asserting that he had "resigned". It was only because Berman rang the alarm by not letting his removal become just another under the radar "resignation" that the public was alerted to what had really happened: that he was the latest in what has become Trump's own months long slow motion version of Richard Nixon's Saturday Night Massacre.
The firing of Berman was later followed by the pardoning of Roger Stone, and then by the use of camouflaged unidentified federal law enforcement officials to covertly arrest protestors it Portland, Oregon.
There are most certainly other activities which haven't come to light because of the manner in which Donald Trump pushes the limits of legality - especially when the public's attention is diverted by the COVID-19 pandemic, the economic crisis and the usual distracting turmoil created by his administration.
Presidential candidates will be in the ironic position of campaigning and then governing on reducing the powers of the very office they will seek or attain in order to restore the balance and civility between the branches of government - and once in office will become aware of things the rest of us will never know about. Thus, some leeway can be extended to current and future presidential candidates in committing to and implementing the proposals in The Pledge to Safeguard the Constitution.
These are not simple or easily legislated issues.
Vice President Biden - as the presumptive Democratic nominee in 2020 - could be in a unique position to facilitate The Pledge because of his experience as Vice President and his decades of connections and rapport with the Congress. He could be trusted to prudently defend the necessary rights and powers of the executive branch; yet to reduce the unnecessary ones which have led to our present constitutional impasses.
This could become part of Biden's - or any future President's - greatest legacy.
Congress will need to address these issues. The wisdom, expertise and cooperation of whomever occupies the Oval Office will make the process much easier and will be necessary - if not vital - to its success.
© 2020 Alex Crisafulli. All rights reserved.