Shannon Bow O’Brien, The University of Texas at Austin
April 2, 2023
A Manhattan grand jury voted to indict former President Donald Trump on March 30, 2023, for his alleged role in paying porn star Stormy Daniels hush money.
Trump lawyer Joe Tacopina confirmed the indictment.
The New York Times reported that it is not yet clear what exact charges Trump will face, but a formal indictment will likely be issued in the next few days. Manhattan District Attorney Alvin Bragg is the first prosecutor ever to issue an indictment against a former president. Trump is still the center of several ongoing investigations regarding other alleged criminal activity, including actions he took while in office.
American history is rife with presidents who have used their office to extend executive authority.
Presidents are not kings. George Washington once reflected on this distinction, saying, “I had rather be on my farm than be emperor of the world.”
But American politics and presidency scholars – including me – have long worried about the idea of an imperial presidency – meaning, a president who tries to exert a level of control beyond what the Constitution spells out.
Trump was just another example of a president acting as if he was king by just another name.
Expanding role of the presidency
While some early presidents, notably Andrew Jackson and Abraham Lincoln, expanded the executive branch, most were constrained by the dominance of the legislative branch in their day.
The growth of the executive branch in terms of size and power began in earnest during the 20th century.
Franklin Roosevelt attempted to pack the Supreme Court to overcome opposition to his New Deal legislation, a series of public works and spending projects in the 1930s.
Roosevelt wanted to add a justice for every existing judge on the court who did not retire by age 70 – but it was a transparent attempt to alter the court’s composition to favor his agenda, and the Senate shot it down.
Richard Nixon decided to impound money authorized for programs simply because he disagreed with them. Nixon had vetoed the Federal Water Pollution Control Act Amendments of 1972 but was overridden by Congress. He still withheld money, which eventually culminated in a 1975 Supreme Court case, in which the court ruled against Nixon.
Other presidents tried to unduly influence more mundane aspects of life.
In August 1906, for example, Theodore Roosevelt issued an executive order forcing the Government Printing Office to begin using the new spellings of 300 words – including “although” and “fixed” – in order to simplify them.
Following broad public criticism of this plan, Congress voted to reject these proposed spelling improvements in 1906.
Trump’s turn
Trump’s actions and words throughout the presidency also suggest he believed that the office gave him overarching power.
For example, Trump reflected on his power over states to force them to reopen during the COVID-19 crisis, saying in April 2020, “When somebody’s president of the United States, the authority is total.” But governors actually maintained the control over what remained open or closed in their states during the pandemic.
Trump has also treated the independent judiciary as an inferior branch of government, subject to his control.
“If it’s my judges, you know how they’re gonna decide,” Trump said of his potential judicial appointees in 2016.
Chief Justice John Roberts rejected Trump’s view on this issue in 2018, saying, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. … What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
It’s classified
There is a rigorous procedure if presidents decide to declassify information. This complex process involves all classified material being reviewed by appropriate government agencies and experts at the National Archives.
But Trump claimed at one point any documents he took home were already declassified.
He later asserted, “There doesn’t have to be a process, as I understand it. … You’re the president of the United States, you can declassify just by saying it’s declassified, even by thinking about it.”
These comments help substantiate Trump’s belief in his absolute authority. There are specific procedures in place to manage declassification that do not involve psychic powers.
One real superpower
If the American presidents have one superpower, it is the power of the pardon. American presidents can pardon people, and the legislative and judiciary branches cannot prevent it.
Past presidents have used pardons largely in the service of justice, but at times to also reward personal friends or connections. But Trump took it even further, using this power seemingly as a way to reward his loyal supporters – and says he will seriously consider pardoning the Jan. 6, 2021, Capitol rioters if he is reelected.
Trump also apparently considered granting himself a pardon as a way to avoid any prosecution for his involvement with the Capitol attack.
A self-pardon would also potentially place any president in constitutional murky water.
A 1919 Supreme Court ruling declared that a pardon “carries an imputation of guilt and acceptance of a confession of it.” So, if Trump had pardoned himself for anything, he would have admitted to having committed a crime – for which he could still potentially be impeached or investigated under any applicable state law, which is not covered by a presidential pardon.
After office
Since leaving office, Trump has attempted to claim post-presidential executive privilege, independent of the current administration. But President Joe Biden – who must first give Trump this privilege – never extended it to his predecessor.
Trump’s defense that he was allowed to store classified documents at Mar-a-Lago as a result of executive privilege has largely been unsuccessful in the courts.
Trump has also used his time as president to avoid any lawsuits that emerged after he left office.
In January 2023, a federal judge shot down Trump’s attempt to dismiss a 2022 defamation lawsuit filed by the writer E. Jean Carroll, who says Trump raped her in the 1990s. Trump denied the rape in 2019.
In court, Trump argued that anything he said as president should be protected and he should be given immunity during that period.
Though a ruling is still pending, Carroll has argued in court that immunity would apply only if Trump were referring to presidential matters, and not personal ones.
Everyone is held to the same rules
American presidents serve a limited amount of time governing before they return to the general population’s ranks.
Those privileged enough to hold the top office in the U.S. are still citizens. They are held to the same laws as everyone else and, the founders believed, should never be held above them.
Throughout history, many presidents have pushed the boundaries of power for their own personal preferences or political gain. However, Americans do have the right to push back and hold these leaders accountable to the country’s laws.
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Presidents have never been monarchs. If they ever act in that manner, I believe that the people have to remind them of who they are and whom they serve.
Shannon Bow O’Brien, Associate Professor of Instruction, The University of Texas at Austin
This article is republished from The Conversation under a Creative Commons license. Read the original article.