"In retrospect, there was no reason we should ever have expected Donald Trump to really embrace the “equal power” aspect of the presidency. Modern presidents have typically arrived at the White House after having served elsewhere in government, often the federal legislative branch. No one had come from running a private company. No one had come to power limited only by what his lawyers couldn’t wriggle him out of. But Trump did.
During his first four years in office and during the first few weeks of his return, Trump has worked deliberately and effectively to transform the presidency from being one-third of a governmental triumvirate into something more like what his ideological allies Vladimir Putin and Viktor Orban enjoy. He has been aided by remarkable capitulation from the purportedly equal branches.
As he and his team — most notably Elon Musk — run roughshod over legal and ethical boundaries, it’s been hard not to notice how unprepared the system is for an internal threat. One would in fact be justified in assuming that Trump’s failures to comply with the law might trigger no repercussions whatsoever, just as they didn’t during his first term in office and largely didn’t during his interregnum.
Who will police the president? Barring an outbreak of self-respect at the Capitol, the answers are unsatisfying. There are the courts, though that path tends to be slow and depends on respect for the courts’ authority. There’s also the public — the same public that Trump still insists wanted him to be president in November 2020. And that’s about it.
Illegality by the administration is not an abstract question. Trump and/or Musk have blocked congressionally authorized spending, gutted a congressionally instituted governmental agency, fired inspectors general without the proper notice, reportedly put confidential information at risk and overseen other changes that appear to violate the Constitution or the law.
“Trump is asserting a constitutional prerogative to ignore, disregard or even openly violate laws that are inconsistent with his policy,” New York University law professor Trevor Morrison told the Wall Street Journal. Writing on Substack, former executive-branch attorneys Bob Bauer and Jack Goldsmith suggest that it’s likely that the Trump administration “doesn’t care about compliance with current law, might not care about what the Supreme Court thinks either, and is seeking to effectuate radical constitutional change.”
In other words: Violations of legal and precedential boundaries are about proving that no one can police the president, as much as revealing that no one can.
This would explain why Trump is trying to effect change through executive orders rather than getting legislation passed by Congress. He could pressure his party’s slim majorities in the House and Senate to, say, dismantle the U.S. Agency for International Development. It would take political capital and require a public fight. But if his intent is to demonstrate that he doesn’t need to defer to the legislative branch — the “most aggressive” implementation of the idea that the president holds uncontested control over the executive branch, as Michael Gerhardt, a professor of constitutional law at the University of North Carolina at Chapel Hill, put it in a phone call — then the executive order itself is central to the point. Or consider the executive order on TikTok which, as Bauer and Goldsmith note, challenges both the legislative branch (which passed the law banning it) and the Supreme Court (for upholding the ban).
What have we seen in response to Trump’s and Musk’s actions? Not a lot.
If you’re curious what approach the Justice Department might take: Interim U.S. attorney Edward R. Martin Jr. sent a public message on Monday assuring Musk that his office in D.C. would work to protect members of Musk’s team from the putative threat of being publicly identified. It is similarly likely that a Trump-controlled Justice Department — and by all appearances this one is shaping up to be just that — would decline to launch an investigation or appoint a special counsel to evaluate Trump’s and Musk’s actions."
During his first four years in office and during the first few weeks of his return, Trump has worked deliberately and effectively to transform the presidency from being one-third of a governmental triumvirate into something more like what his ideological allies Vladimir Putin and Viktor Orban enjoy. He has been aided by remarkable capitulation from the purportedly equal branches.
As he and his team — most notably Elon Musk — run roughshod over legal and ethical boundaries, it’s been hard not to notice how unprepared the system is for an internal threat. One would in fact be justified in assuming that Trump’s failures to comply with the law might trigger no repercussions whatsoever, just as they didn’t during his first term in office and largely didn’t during his interregnum.
Who will police the president? Barring an outbreak of self-respect at the Capitol, the answers are unsatisfying. There are the courts, though that path tends to be slow and depends on respect for the courts’ authority. There’s also the public — the same public that Trump still insists wanted him to be president in November 2020. And that’s about it.
Illegality by the administration is not an abstract question. Trump and/or Musk have blocked congressionally authorized spending, gutted a congressionally instituted governmental agency, fired inspectors general without the proper notice, reportedly put confidential information at risk and overseen other changes that appear to violate the Constitution or the law.
“Trump is asserting a constitutional prerogative to ignore, disregard or even openly violate laws that are inconsistent with his policy,” New York University law professor Trevor Morrison told the Wall Street Journal. Writing on Substack, former executive-branch attorneys Bob Bauer and Jack Goldsmith suggest that it’s likely that the Trump administration “doesn’t care about compliance with current law, might not care about what the Supreme Court thinks either, and is seeking to effectuate radical constitutional change.”
In other words: Violations of legal and precedential boundaries are about proving that no one can police the president, as much as revealing that no one can.
This would explain why Trump is trying to effect change through executive orders rather than getting legislation passed by Congress. He could pressure his party’s slim majorities in the House and Senate to, say, dismantle the U.S. Agency for International Development. It would take political capital and require a public fight. But if his intent is to demonstrate that he doesn’t need to defer to the legislative branch — the “most aggressive” implementation of the idea that the president holds uncontested control over the executive branch, as Michael Gerhardt, a professor of constitutional law at the University of North Carolina at Chapel Hill, put it in a phone call — then the executive order itself is central to the point. Or consider the executive order on TikTok which, as Bauer and Goldsmith note, challenges both the legislative branch (which passed the law banning it) and the Supreme Court (for upholding the ban).
What have we seen in response to Trump’s and Musk’s actions? Not a lot.
Law enforcement
If Musk’s team that is slashing through government agencies lacks the proper authorization to obtain classified information or access certain offices, for example, the Department of Homeland Security might usually get involved. Even if any individuals were arrested for violating federal laws, though, Trump could immediately pardon them, granting them both retroactive and proactive immunity.If you’re curious what approach the Justice Department might take: Interim U.S. attorney Edward R. Martin Jr. sent a public message on Monday assuring Musk that his office in D.C. would work to protect members of Musk’s team from the putative threat of being publicly identified. It is similarly likely that a Trump-controlled Justice Department — and by all appearances this one is shaping up to be just that — would decline to launch an investigation or appoint a special counsel to evaluate Trump’s and Musk’s actions."
