The President – what’s up with that?

I talk high office with a constitutional law expert

The word president means to preside, which, at its root, means to sit before, or, simply, sit in front of.

The humble etymology may not be what you think of when you witness the bluster, raging ego, and ersatz pomp of the current U.S. president.

And that gap — between original definition and the current theory of the office — is widening, with the range of power the office claims undergoing perhaps the most radical change in a century.

To understand how Trump and his allies/enablers are consolidating power in the executive branch – and how that power is currently being brandished – I’m reconsidering two recent documents: the Supreme Court decision in Trump v. United States and the Jack Smith report.

But let’s start on Jan 21, Trump’s first full day back in office, when a memo from the Acting Deputy Attorney General Emil Bove went out to all DOJ employees and cited the power of the presidency. Here’s a paragraph:

The memo, referencing a Trump day-one executive order, claims “extensive Article II authority” as it applies to an array of issues: immigration, foreign affairs, and the catchall of “national security.” The memo directly threatens state or city officials for not getting in line. (Meanwhile, the administration is stretching and sometimes breaking legal precedent, and asking others to do the same.)

Another memo, this time from Attorney General Pam Bondi and issued the very day she took office, establishes the Orwellian-sounding “Weaponization Working Group,” which effectively does exactly what it purports to decry: weaponize the DOJ.

The memo tasks DOJ officials with noting where judicial review falls out of line with the executive branch’s agenda, one such instance being what the memo describes as the “weaponization by Special Counsel Jack Smith and his staff, who spent more than $50 million targeting President Trump, and the prosecutors and law enforcement personnel who participated in the unprecedented raid on President Trump's home.”

No complaints, meanwhile, about the Trump-sparked J6 raid on the Capitol building or his manifold, dangerous and downright bizarre attempts to overturn an election he clearly lost.

Trump’s disdain for accountability, his administration’s push for revenge, and the eroding of “checks and balances” (e.g. Musk’s post on X about the “evil judge” who “must be fired!” for ruling that the CDC needs to restore an HIV-monitoring website) have been fanning an already smoldering constitutional crisis.

A bookish revolution

Last week, the independent press Melville House published the Jack Smith report, unadorned by intro or epilogue, as a book.

I spoke with Dennis Johnson, Melville House’s publisher about his motivation to publish the report. He reminded me: “This was a country largely motivated to rebel by a book” – a reference to Thomas Paine’s Common Sense.

“We just decided, fuck it, let's make that thing a book,” Johnson said. “Give it straight to the reader.”

Johnson said he grew up with the Pentagon Papers on his family’s bookshelf — partly what inspired him to publish a series of similar volumes at Melville, including the DOJ’s recent report on the Tulsa Race Massacre, which investigates the 1921 incident in which white rioters burned the Tulsa community known as “Black Wall Street” to the ground and murdered hundreds of African Americans.

The Jack Smith report is an astounding document, probing deep into the definition of insurrection, for example, or reminding people how close to the brink of a constitutional cataclysm we were just four years ago. Simple statements of fact do a lot of work, such as how on January 6, during his speech at the ellipse, Trump

“used the word ‘fight’ more than ten times… before concluding by directing his supporters to march to the Capitol to give allied Members of Congress ‘the kind of pride and boldness they need to take back our country.’ He also told the angry crowd that ‘if you don't fight like hell, you're not going to have a country anymore.’ Throughout the speech, Mr. Trump gave his supporters false hope that through such action, they could cause Mr. Pence to overturn the election results.”

Photograph of the Capitol January 6, 2021 (Shannon Stapleton/Reuters)

Or, a couple hours later, still on January 6,

“at 2:24 p.m., sitting alone, Mr. Trump issued a Tweet attacking Mr. Pence and fueling the riot: ‘Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!’ One minute later, the United States Secret Service was forced to evacuate Mr. Pence to a secure location at the Capitol. When an advisor at the White House learned this, he rushed to the dining room and informed Mr. Trump, who replied ‘So what?’”

To try to wrap my head around what it all means, pad it with some historical context, and peer into a possibly dark(er) near-future, I spoke with Shalev Roisman, constitutional law expert and former attorney in the Office of Legal Counsel in the U.S. Department of Justice, where he advised the executive branch, mostly in the Obama White House. Roisman is currently a law professor at the University of Arizona.

The following conversation has been edited for length and clarity.

John: The United States didn’t always have a president. Could you explain that history?

Shalev: The first form of government was the Articles of the Confederation. This is before the Constitution, a system basically centered on the states and a very minimal federal government. There was a Continental Congress, but there was no executive branch, so no president, and there was no federal judiciary.

And that didn't work for a number of reasons, basically because the way the Articles of Confederation worked was for Congress to do anything the states had to unanimously agree. And there were all these trade wars, states were violating international treaties and so on. And so there was recognition that the system wasn't working and they needed to fix it.

So that's how the Constitutional Convention happens in 1787 when they're supposed to amend the Articles of Confederation. Instead, what they do is they throw them out completely and write this new document. In some ways the Constitution is itself an illegal document because it didn't abide by the amendment procedures of the Articles of Confederation.

The main thrust of what the Constitution was trying to do was solve some of the flaws of the Articles and create a stronger federal government. They created an executive branch, the president, a national judiciary. They spent a lot of time figuring out what powers Congress should have vis-à-vis the states.

They spent very little time, relatively, on the president. The reason for that appears to be that they just knew George Washington was going to be the president and people trusted him. Seems very short-sighted.

They were mostly scared of Congress being too powerful. It’s a modern development that the president is so powerful.

We saw the rise of the stronger presidency start in the 20th century?

With Wilson, and then it really grows with FDR and the New Deal.

FDR is elected four times. He tried to fire the head of the Federal Trade Commission and was told he could not do that because the FTC head had statutory protection from Congress. This is an issue of whether Congress can protect executive officers from removal. Since the Fed is an independent agency, the President can only remove the head for cause.

An issue we’re seeing rear its head now with Trump firing the inspectors general.

I think the issue with the inspectors general was that there's a notification requirement with that, but he did fire someone that does have for-cause protection from the NLRB (National Labor Relations Board).

Presidents have always tried to wield such authority?

“When the president does it, that means that it’s not illegal,” is what Nixon told Frost, I believe.

There was some pushback on presidential power post-Nixon. But there was also fear of the administrative state. And who populates the administrative state? Mostly Democrats, right? And who likes regulation? Mostly Democrats. Republicans tend to be anti-regulation. They also feel like the bureaucracy is not representative of them because, empirically, there are more Democrats working for the government. So Reagan comes in and his line was something like the scariest nine words in the English language are: “I'm from the government and I'm here to help.”

So through his Justice Department is when the notion of what's called the unitary executive theory really comes up, which is the idea that when the Constitution gives executive power to the president, it says the executive power shall be vested in “a president of the United States.”

A, as in one. That's the unitary executive. So basically the idea is the president gets to control the executive branch.

Skipping ahead a little bit, do you read the Trump v. United States ruling as an affirmation of the unitary executive theory?

In a way, yes. They don't use that term. The issue in Trump v. the United States is whether or not the president can be criminally liable for official conduct he took. And what they hold is that when the president is exercising so-called exclusive power, the president has absolute immunity, meaning Congress cannot criminalize his conduct.

The Roberts Court, I would say, has been hostile to agency power and they've been pro presidential power.

And Roberts does this sometimes, where he will kind of pare back on an area of law without overturning it and then the next time around he overturns it. That's one narrative of what he is doing with Congress’s power to create independent agencies through restrictions on removal of executive officers. He likes to chip away and then he's like, "Well, this has been chipped away at, and so now I'm going to get rid of it.”

Was Sotomayor’s dissent fear-mongering, as Roberts called it?

(Sotomayor: “When [the president] uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”)

To assassinate his political rival, would that be immune? I suppose the question would be: does that fall into the president's exclusive power as commander-in-chief Now, Congress has the power to “regulate the land and naval forces.” So is such a command within the President’s “exclusive” power? Or is it shared with Congress? The majority doesn’t really tell us how to answer that question.

Your real fear, however, is that Trump, or the executive branch, won't follow judicial decisions?

Courts can't enforce their own rulings. They don't have the power of the purse or the sword. They don't have executive agents to enforce them. And so if and when the courts direct the executive branch to do something, the executive branch has to self-comply. They have to choose to comply.

And one major concern would be that if the executive stopped abiding by that norm, it's unclear how the rule of law would operate and, well, then it's just like a constitutional crisis where you have one constitutional actor saying to do something and another not doing it. It's not clear how to resolve that.

Book rec

If you need a break, here’s a good read: Charles Portis’s novel True Grit. A dear friend recommended it to me recently. If you’re looking for one of the toughest female leads in American lit, I highly recommend. It’s provocative, often hilarious, and such a joy.

Article rec

If you need the opposite of a break, read my latest reporting on family separation and third-country deportations.

(Shay Cohen-Jones contributed research to this article.)