The president of the United States has unlimited power.
That’s the extreme theory that former President Trump believes. Reacting to that belief, President Biden labeled “MAGA Republican” philosophy as “semi-fascist.”
The basic question is just how much power the president has because of heading the executive branch of the government. If this power has no limits, does that endanger democracy?
After being forced from the presidency in 1974 because of his campaign’s break-in at the Democratic Party headquarters and his attempted cover-up, Richard Nixon claimed he had done nothing wrong. He defended his actions, saying, “When the president does it, that means it’s not illegal.”
Applying Nixon’s approach, President George W. Bush signed into law bills passed by Congress, while announcing that he would not enforce parts of them with which he disagreed. Despite a few protests, Bush had his way.
In other words, the idea of a “government of laws, not men” applies to everybody except the president, according to this theory. Attorney-General Merrick Garland would be wrong when he says, “Nobody is above the law.”
“The law is the true embodiment of everything that’s excellent. It has no kind of fault or flaw, and I, my Lords, embody the law.” Those are the words in a musical show, written 140 years ago. It sounds like a modern presidential theme song.
But this theory is not democracy, supposedly the essence of America. Biden sees a similarity between what Trump, Bush and Nixon have claimed and classic European fascism. That system of one-man rule forced people to accept authoritarian, anti-democratic government.
Biden believes that MAGA Republicans are moving the U.S. in that direction. His worries may seem reasonable when GOP Sen. Lindsay Graham threatens “riots in the street” if Trump is held responsible for illegally keeping documents and hindering the efforts to recover them.
Trump has often seemed to consider the presidency as conferring a personal right to complete power and not as a public trust. The current investigation into his keeping official documents, even after leaving office, reveals that view.
By law, all official documents used in the conduct of his presidential duties belong to the U.S. and not to him. The Constitution says the president “shall take care that the laws be faithfully executed.” Laws are passed by Congress, not adopted by the president as Nixon asserted.
The law on presidential documents was enacted specifically to deal with Nixon’s actions, so there’s no doubt it applies to Trump. Over time, Congress has given considerable powers to presidents, but the law’s the law.
Trump has said that some government documents he held are “mine” and do not belong to the National Archives. If they were properly deposited when he left office, they remain available to him and confidential for 12 years, long past his presidency and possibly his lifespan. But if they are his, only he may ever have access to them, and he could destroy them.
Trump’s lawyers have tried to turn the dispute into one about document secrecy. They say that he had a standing rule, not yet uncovered, that declassified documents he removed from a secure area of the White House. Still, even if he declassified them, he expects to be the only person to have access to them while they remain in his possession.
That’s the problem with his argument about declassifying them. While he could declassify a document, it is then supposed to be open to the general public including the media and his political opponents. But he did nothing to make allegedly declassified documents known or available to anybody else.
Beyond that, by Trump’s holding onto highly sensitive policy documents, Biden and other successors in the presidency may be unaware of them. The documents may be valuable in the future conduct of foreign policy. While he is responsible for foreign relations, the president exercises control on behalf of the U.S during his term, not for himself ever after.
If the Nixon-Bush-Trump view were the rule, then the president would have the royal powers of the British king like those that were challenged in the Declaration of Independence. And, like the king, he might hold his powers for life.
The main issue now is not simply about an attack on Trump or his right to hold onto documents, secret or not, that by law should have been turned over to the National Archives. The former president seems to hope he can keep the problem at the level of partisan politics, blame the Democrats and risk bringing on riots.
But the issue is about the much bigger question: How much personal power can a president have under a system where the people, though their representatives in Congress, make the laws that everybody, including the president, is expected to obey?
Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.
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