Trump asserting powers 'even the most tyrannical monarchs' didn't have: analysis

A trio of legal experts is warning that the Trump Department of Justice is asserting that the president has unprecedented powers that were not even possessed by English monarchs.

Writing at Just Security, Yale Law School professors Harold Hongju Koh and Fred Halbhuber, along with Yale Law J.D. candidate Inbar Pe'er, point to recent assertions made by Trump DOJ lawyers in court that the United States Constitution does not prohibit President Donald Trump from issuing bills of attainder, which are orders that impose "a punishment on a specific person or group of people without first going through a trial."

During a recent hearing on Trump's executive orders targeting law firms that have in the past represented his political enemies, Judge Beryl Howell asked the Trump DOJ if such orders could be considered bills of attainder, which the United States Constitution explicitly prohibits.

Rather than merely denying that the orders were bills of attainder, the government replied that "as a pure constitutional matter... the bill of attainder restriction is only on Article I and not on Article II [of the Constitution], and so it doesn’t apply to the president."

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The three Yale Law experts then break down just how unprecedented this assertion of powers is, not just in American history but in the history of British monarchies.

"Even under the most tyrannical monarchs, the king never asserted unilateral authority to issue bills of attainder—a power the president now asserts for himself," they contend.

They then walk through the history of bills of attainder, which in England were issued by the Parliament rather than directly from kings as a way to counterbalance what the scholars describe as "counterweights to royal favoritism run amok."

In fact, even a king as notorious as Henry VIII respected that issuing such bills was not a power that he alone could wield.

"For each of the approximately 130 attainders issued during his reign, Henry VIII observed the requirement for parliamentary approval," they explain. "If Parliament’s assent was not forthcoming, Henry VIII acknowledged that he was powerless to act. So, when Henry VIII famously sought to attain a list of alleged traitors, and the House of Lords refused to proceed until Sir Thomas More was removed from the bill, it was Henry VIII that relented."

Turning back toward the present, they write that Trump's assertion of such powers is clearly well outside the bounds of constitutional law.

"The Trump administration’s claim that the president alone can issue what would be forbidden bills of attainder if enacted by legislation represents a dangerous misreading of the Constitution’s history," they warn. "The very Framers who suffered under bills of attainder never intended to grant their new president a unilateral power to punish perceived enemies that even three centuries of English kings did not possess."