President Donald Trump keeps saying something extremely bizarre and outrageously wrong — and yet, at the same time, it may be accidentally insightful.
He seems to have first trotted out this new line earlier this in the month, telling reporters that “Nobody ever mentions Article II,” referring to the Constitution. “It gives me all of these rights at a level that nobody has ever seen before. We don’t even talk about Article II.”
On Tuesday at a speech before the pro-Trump group Turning Point USA, the president was even more explicit about what he thinks Article II means: “I have an Article II, where I have the right to do whatever I want as president.” (The president’s odd phrasing here evokes his embarrassing reference to “Two Corinthians,” but leave that aside.)
The president, of course, can’t do just anything. So what on Earth is Trump talking about? Many observers suggested that these comments betray Trump’s ignorance about the Constitution and his authoritarian impulses. Both of these explanations are likely true, but there’s something else going on, too.
The unitary executive
Trump’s Attorney General Bill Barr is a proponent of the “unitary executive” theory of American presidential power, which holds that all power in the administration flows directly through the president. That means, according to this theory, that the president’s power to, say, shut down any investigation or fire the director of the FBI, is unconstrained and essentially unreviewable. Partly on the basis of this theory, it seems, Barr has determined and claimed that Trump is not guilty of obstruction of justice in the course of the Russia investigation — despite all of the evidence laid out in former Special Counsel Robert Mueller’s report.
In Trump’s mind, that has been distorted into the idea that he has the “the right to do whatever I want as president.”
This isn’t what Barr believes. During his confirmation hearing, for example, Barr said that if a president suborns perjury, it’s a crime — just as it would be for anyone else.
And in a memo written before he became attorney general arguing against what he believed to be Mueller’s views of presidential power, Barr also acknowledged how the president could commit obstruction of justice crimes.
“Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function,” he wrote. “Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony.” (There is ample evidence in the report that Trump carried out acts along these lines.)
But really, in practice, Trump’s distorted version of Barr’s view may actually be a more accurate description of the practical effects of the unitary executive theory. Because in Barr’s view, though Trump can technically commit crimes, there’s no plausible way for him to be held accountable for crimes. Barr believes the president can legitimately shut down any investigation — even into his own conduct — and that it couldn’t count as an obstructive act. Barr believes he could fire any employee of the executive branch that would start an investigation. And he believes that, since a president isn’t going to be indicted while in office, the executive branch shouldn’t investigate him at all.
While Congress, under this theory, still has the power to impeach the president, Barr has been at the forefront of Trump’s effort to block documents and testimony about the president’s conduct by lawmakers. So Barr denies the executive branch can or should investigate the president’s conduct, and he in practice blocks Congress’s ability. A president could still, of course, be prosecuted once out of office, but the longer time passes, the harder it becomes to prosecute crimes. And the president may commit crimes that help him or her win re-election, thus delaying prosecution beyond the statute of limitations. The president may also use the pardon power — particularly in the “lame duck” session — to pardon any potential co-conspirators and further protect himself or herself. It’s not clear if, under Barr’s view, the president could even self-pardon — but we can’t rule it out, either.
So when Trump says Article II gives him the “the right to do whatever I want as president,” he’s clearly warping a more sophisticated view of the Constitution. But in practice, really, he’s not that far off about what the “unitary executive” theory means.
Watch the clip below: