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Trump goes to war for power over Congress

NBC News logo NBC News 4/24/2019 Jonathan Allen
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WASHINGTON — President Donald Trump is trying to show Congress that he's boss.

The release last week of special counsel Robert Mueller's report on Russian interference in the 2016 election and possible obstruction of justice by Trump has unleashed the president's fury — as evidenced by a steady stream of angry tweets and threats of retribution against adversaries real and perceived — and his willingness to thumb his front tooth at Congress.

The result is an escalating assertion of the presidency as the dominant branch of government in a war over the balance of power. The battle has implications for the rest of Trump's first term, his re-election bid and the institutional authorities at the heart of American democracy.

There's even some thought that Trump is now baiting the House to impeach him.

"I think it's entirely possible he’s pursuing a briar-patch strategy, like bring your impeachment because you will be punished for it — not by me, but by the voters," said Michael Caputo, a GOP strategist and former Trump adviser.

Increasingly, constitutional experts say Trump is providing evidence to conclude that there are grounds outside Mueller's findings that he has crossed the Constitution's loosely defined "high crimes and misdemeanors" threshold for impeachment.

Most recently, for example, Trump has instructed subordinates to deny Congress access to witnesses and documents that House leaders have demanded for their investigations. The Washington Post reported that the White House plans to block a subpoena for former White House counsel Don McGahn to testify by exercising executive privilege, though Trump told the paper in an interview that he had not "made a final, final decision" to do so.

Donald Trump et al. standing next to a man in a suit and tie: President Donald Trump waves as he greets supporters on the tarmac at Palm Beach International Airport, as he arrives to spend Easter weekend at his Mar-a-Lago club, Florida on April 18, 2019. © Al Drago President Donald Trump waves as he greets supporters on the tarmac at Palm Beach International Airport, as he arrives to spend Easter weekend at his Mar-a-Lago club, Florida on April 18, 2019. But some longtime analysts of the Washington power balance say Trump's latest moves are the most contemptuous in a full-scale effort to stretch the bounds of his office.

"Trump is not inventing executive intransigence out of whole cloth," said Heidi Kitrosser, author of "Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution" and a professor at the University of Minnesota law school. "At the same time, this is not same-old, same-old. He is taking longstanding pathologies in terms of an increasingly imperial executive branch and ratcheting it up many times over."

In recent months, Trump has declared a national emergency so he could re-appropriate money to build a border wall — a move congressional Democrats and several state attorneys general say is an unconstitutional encroachment on Congress' spending authority — and his administration has routinely denied lawmakers' requests for basic information from federal agencies.

It's not just Congress that has found Trump's regard for the rule of law wanting; the courts have also weighed in.

In a review of more than five dozen instances in which courts blocked actions by the Trump administration, The Washington Post found a common thread: judges ruling that officials had implemented policies without following the rules.

In his report to Attorney General William Barr, Mueller identified 10 instances in which Trump's behavior could be viewed as obstruction of justice. While Mueller declined to conclude the president had, in fact, obstructed justice — he said that Justice Department policy precluded him from recommending a prosecution of the president whether or not he believed it was warranted — he also said his report did not exonerate Trump.

Trump's angry reaction to the release of the redacted Mueller report, his ongoing commentary about witnesses and his demand that the White House fight congressional efforts to interview Mueller's witnesses has been taken by some critics as fresh evidence that he continues to obstruct justice.

Increasingly, constitutional experts say that Trump's actions, both within the context of the just-released special counsel report and outside it, represent abuses of office so serious they could rise to the constitutional impeachment standard of "high crimes and misdemeanors."

"The report’s details add to an existing body of information already in the public domain documenting the president’s violations of his oath, including but not limited to his denigration of the free press, verbal attacks on members of the judiciary, encouragement of law enforcement officers to violate the law, and incessant lying to the American people," several members of the group Checks and Balances, co-founded by conservative lawyer George Conway, wrote in a statement released Tuesday. "We believe the framers of the Constitution would have viewed the totality of this conduct as evidence of high crimes and misdemeanors."

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In any event, Trump is demonstrating a resistance to the constraints on his office — and a disrespect for the powers of the other "co-equal" branches of his government — that is both familiar in nature and unfamiliar in degree to those who have watched authority ceded to the presidency in recent decades.

"I think this is an extension of a trend that has been occurring over the past several presidencies," said Mack McLarty, who served as President Bill Clinton's chief of staff. "President Trump has pushed the limit and that may be putting it diplomatically."

Kitrosser, the University of Minnesota law school professor, said the response to Trump will be important for the future of the balance of power.

"The big question is, will the Trump administration be a turning point that leads us to address some of these longstanding pathologies, particularly executive imperialism and Congress' abdication, or whether it is going to lead us to accept ever greater imbalance of power?" she said. "I think we're at a real turning point and it can go one way or the other."

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