The topic of “Handing a gun to a fool“ was published as my post of January 8, 2019. It is republished here as “Handing a gun to a fool 2” with no changes except the addition of new coverage on the same issue by a CBS/Ted Koppel interview today. That interview, titled by CBS “Limits of Presidential Power” is a timely (and more informed!) continuation of my post of from 18 months ago, I chose to include it for the benefit of anyone who wishes to see the more resourced an updated comments a Kopple interview could include. Consequently, what begins immediately below is the 2019 post, then followed as a final piece by the Koppel interview.

This evening President Trump speaks to the nation (uncharacteristically, other than by twitter!). He is expected to expound on his threat to invoke a “national emergency” to clear the way for his acting unilaterally to build a physical wall on the US/Mexico border. Americans are accustomed to the president’s “alternative facts” and repetitive lying, but are not accustomed to the nature of national emergencies. Such familiarity has become crucially important. At least on a short term basis, though possibly for a limited topic, this involves temporary suspension of the federal separation of powers. Yes; this is heady stuff in the hands of a fool.

In the January/February issue of The Atlantic, Elizabeth Goitein, author of The New Era of Secret Law, published “What the President Could Do if He Declares a State of Emergency.” As co-director of the Liberty and National Security Program at the Brennan Center for Justice, Goitein is thoroughly acquainted with American presidents’ access to otherwise prohibited powers simply by their declaring a national emergency. There are others qualified to explain, criticize, and defend the Emergency Powers Act and related legislation, of course, so I encourage your Google pursuit of opposing views, such as recently that of Bruce Ackerman (see the footnote reference below). As to Goitein’s article, the one I recommend that you read in its entirety, it can be found at https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/.

There is purpose, of course, in a disastrous, unforeseen emergency for overriding the usual constraints on the president, thereby removing barriers to swift and unilateral presidential action. Of course, that carries its own dangers, for the customary restrictions on executive power are not in place without reason themselves. Traditionally the fall-back safeguard is that Congress will assume that a given president will act in the country’s best interest when he or she is proceeding with negligible oversight.

Obviously, the provision—intended only for emergency conditions for which Congressional action would be insufficiently agile—could be disastrous if that assumption were to be wrong. It is not intended for use just because a president cannot otherwise be politically successful. It is not meant to be a political tool in the executive toolbox for overriding Congressional action or its intentional inaction. It is for real emergencies only.

Problematically, however, the president does not have to get Congressional approval to declare an emergency or to use it once declared. It takes little imagination to consider the danger to the country if the president were to be unhinged, narcissistic, misinformed, or otherwise impaired.

Consider, as Goitein warns, that a presidential declaration of a national emergency opens up more than 100 special provisions enabling increased presidential power. As she puts it, “while many of these tee up reasonable responses to genuine emergencies, some appear dangerously suited to a leader bent on amassing or retaining power. For instance, the president can, with the flick of his pen, activate laws allowing him to shut down many kinds of electronic communications inside the United States or freeze Americans’ bank accounts . . . But what if a president, backed into a corner and facing electoral defeat or impeachment, were to declare an emergency for the sake of holding on to power?” In that scenario, our laws and institutions might not save us from a president seemingly eager to be the top branch of government rather than one-third of it.

Moreover, it is not clear that a president will refrain from expand his/her emergency power still further to include other matters than those used to justify the emergency to begin with. Goitein states, “the National Emergencies Act doesn’t require that the powers invoked relate to the nature of the emergency” [italics mine; JC]. 

Are there ways for a Congress to act such as to prevent this potential run-away power grab? As I understand Goitein’s article, the Congress would have to be far quicker and more resolute than the Senate has been now and that the House has normally been in the best of times. In other words, though there are Congressional safeguards available, they are leaky ones, on which the Congress has typically exercised minimal control.

However,

Please note this proviso that readers should carefully examine the specifics of what I’ve said here. My training and experience are neither authoritative nor even fully informed. Check what others have said about the emergency powers a president may unilaterally access. Trump has behaved erratically enough for any hint of his getting excessive power is to be checked out before it actually occurs. His lying makes everything he says suspect. This is not the time to take risks with this man, described by mental health professionals as “psychotically narcissistic” and by a majority of Americans as prone to make even critical things up, and to break agreements and promises as if he’d never uttered them.

President Trump has this month already begun threatening that a “national emergency” on our southern border—an “emergency” that the Republican Senate, the former Republican House, and the current Democratic House do not recognize as even close to an emergency—will call for a formal presidential emergency declaration if he doesn’t get his way. Such a declaration might occur as early as this evening. More chilling is that once the nation has been put on an emergency footing with expanded powers vested in Trump, it may be difficult or impossible to predict to what topics and degrees that uncontrolled power might be extended.

An opposing view: A less well-reasoned argument in my opinion, though it is from an authoritative source, is “No, Trump Cannot Declare an ‘Emergency’ to Build His Wall” by Bruce Ackerman, January 5 in the New York Times. Ackerman is professor of law at Yale and author of The Decline and Fall of the American Republic.

Alarming secrecy of unchecked presidential powers

This is a remarkably pertinent and timely Ted Koppel interview presented today by CBS Sunday Morning titled “Rewriting the Limits of Presidential Powers,” [https://www.cbsnews.com/news/rewriting-the-limits-of-presidential-powers/.] I found CBS’s choice of topic and Ted Koppel’s interview so impressively on target that I repeated my watching/reading until the audio ‘jammed.’ I tried to fix what I thought might be my problem rather than CBS’s, and I found the program could now not be accessed. Thinking that to be puzzling led me to save the written version in case it, too, were to be lost or deleted. Access did later return. (For the unusual flicker of paranoia, I apologize!) I am indebted both to CBS News and Mr. Koppel for the competence and integrity of each.

•  “Rewriting the Limits of Presidential Powers”
• Interviews led by Ted Koppel

• The power of the president is enormous – and this president is not bashful in describing powers that go well beyond simple declarations. There are, it’s true, some restraints on most presidential authority, but those might not apply to all the president’s powers. We can’t know for sure, but what the president appears to have been referring to are his presidential emergency action documents, often referred to as PEADs.
• “Sunday Morning” special contributor Ted Koppel asked, “Do you know what they are, now that you’ve heard of them? “The Brennan Center research that Senator Hart referred to has been spearheaded by Elizabeth Goitein, the co-director of its national security program, and a contributing writer at The Atlantic.
• “These are essentially presidential orders that are drafted in anticipation of a range of hypothetical, worst-case scenarios,” Goitein said.
• “Only vaguely, due to research done at the Brennan Center for Justice at New York University Law School,” Hart said. “What these secret powers are, apparently, based on the research, is suspension of the Constitution, basically. And that’s what’s worrying, particularly on the eve of a national election.”
• “Even though I’ve had security clearances for the better part of 50 years and been in and out of national security matters during that half-century, I had never heard of these ‘secret powers,'” said former Senator Gary Hart.
• As Mr. Trump stated in March, “I have the right to do a lot of things that people don’t even know about.”
• In April, when discussing guidelines to be issued to governors about reopening states during the coronavirus pandemic, President Donald Trump said, “When somebody is the President of the United States, the authority is total, and that’s the way it’s got to be – it’s total.”
• The alarming scope of the president’s emergency powers (“The Atlantic)”Well, not exactly,” Goitein replied. “And what’s alarming about that is that no one really knows what the limits of those claimed authorities might be, because they are often developed and kept in secret.”
• “They originated in the Eisenhower administration as part of an effort to try to plan for a potential Soviet nuclear attack,” Goitein said. “But since then, they’ve expanded to address other types of emergencies as well. No presidential emergency action document has even been released, or even leaked. Not even Congress has access to them, which is really pretty extraordinary when you consider that even the most highly-classified covert military and intelligence operations have to be reported to at least eight Members of Congress, the ‘Gang of Eight.’ “
• “Exactly,” said Goitein. “Congress is not aware of these documents, and from public sources we know that at least in the past these documents have purported to do things that are not permitted by the Constitution – things like martial law and the suspension of habeas corpus and the roundup and detention of people not suspected of any crime.”  “Every administration, including Democratic administrations, has revised and updated these powers. I started contacting friends of mine, of both parties, who had been in senior positions, and I got two responses, or one response which is, ‘I’ve never heard of these powers’ (and these are people in senior cabinet positions), or, I got no response at all. And it was the no-response-at-all from people I knew that began to worry me. Because there not only is secrecy around these powers, there is mystery around the secrecy. “Under the National Emergencies Act of 1976 alone, the president can declare a national emergency just by signing a proclamation.” And most recently, [he] has declared that he may need to delay the election, which would be an emergency authority that doesn’t even exist. So, I think you have to be very concerned.
• “John Yoo is a law professor at the University of California, Berkeley. While serving at the Justice Department after 9/11, Yoo drafted the memo that justified the use of “enhanced interrogation” of terrorism suspects. “I am not allowed to say whether I have or not,” he laughed. “Yes, that’s fair to say,” Yoo replied. “The Justice Department and the office I worked in would review the legality of the PEADs because they would draw on presidential powers and Congressional powers delegated to them.” “‘Cause you never know what the emergency is gonna be,” said Yoo. “So, these PEADs and similar contingency planning documents, when we look back historically at them, sometimes they seem comic.” “Oh, forgive me. I don’t mean this whole question is comic,” Yoo said. “And you are right, Ted.  There’s dangers to that, and we’ve seen in our history where presidents have gone too far. I guess there’s a balance, and I guess the founders, they balanced in favor of giving the president that kind of ability to face emergencies, even understanding that a badly-intentioned president might abuse those powers.”
• Yoo said, “That’s why the framers created the presidency, because it could act quickly. I would want President Obama or President Biden to have the power to respond quickly to a hurricane or a terrorist attack, just as I would want President Trump to.” “I’d be the first to admit that, in emergencies, the executive branch can make mistakes, and that’s sometimes the price of swift action,” Yoo replied.
• “Congress is more likely to get things right. The founders thought that. But Congress is too large and too slow to act decisively.”
• Gary Hart doesn’t think that goes far enough: “I want them public, because they affect the freedom and liberty and rights of every American citizen,” he said.
• “I can’t say it any better. This is a blueprint for dictatorship. Now, I think the more attention it gets, the less likely those in power are going to use them,” Hart replied. “This goes to the core of our country and our founding. And if there is what amounts to the capability to suspend our Constitution, that’s not just another issue. That’s serious.
• “Keep in mind, the current, incumbent president has declared seven national emergencies. And he has stated repeatedly that he has more power than most people know about.”
• Koppel said, “We have so much publicity, Senator Hart, we have so many different voices being raised in anger, in outrage, in fury, I’m not sure what a few more voices raising an issue like this, what impact that’s going to have.” Having said that, Yoo would be comfortable giving a few select Members of Congress classified access to the secret PEADs.
• “That’s fairly benign, John,” said Koppel. “But what if what the president was planning to do was the suspension of habeas corpus? How would you feel about it then?”
• Goitein said, “These PEADs undergo periodic revision. And we know that the Department of Justice is in the middle of one of these periodic reviews and revisions. So, we have to imagine what the Trump administration might be doing with these documents and what authorities this administration might be trying to give itself.”
• “The notion that there are executive powers based on something that has never been vetted by Congress, giving the president almost limitless powers to do what he needs to do in the event of a crisis, that’s not funny to me; that’s scary,” Koppel said.
• Just a couple of weeks ago, Yoo was at the White House discussing executive power with President Trump. “Let me put it this way: You were at the Justice Department. Presumably the Justice Department would’ve had to deal with these PEADs if a president wanted to implement one?”
• Yoo was asked by Koppel, “Just to reassure our viewers a little bit, John, you’ve seen these PEADs?”
• Which brings us back to those mysterious Presidential Emergency Action Documents:
• Cole said, “We’ve got a president who, in his first week in office, essentially declared an emergency to ban Muslims from coming into the country. More recently, [he] declared a widely understood to be a fake emergency in order to build a border wall when Congress told him they would not give him the funds to create a border wall.
• “I think I know as much about the PEADs as any other American citizen, which is almost nothing at all,” said David Cole, national legal director of the American Civil Liberties Union – and he is concerned about the vast array of presidential emergency powers that we do know about.
• Hart said, “The reason these documents are secret is, for 11 administrations, people in power did not want to frighten the American people, or to demonstrate what might happen to their constitutional rights and liberties.
• A 1967 memo from William Cornelius Sullivan of the FBI alludes to a PEAD which authorizes the suspension of habeas corpus. “This is a drastic program set up under the assumption that drastic steps will be necessary to protect the national security of this country so that efforts can be made to remove from circulation individuals determined to be potentially dangerous to the national defense and public safety of the United States by engaging in espionage, sabotage and/or subversion in the event an attack is launched against this country,” Sullivan wrote.  
• “You’re saying they are not consulting with Congress?” Koppel asked.
• Goitein says what little we do know about PEADs comes from references to them in other documents, some of which are now declassified.
• Koppel asked, “Several times during his administration, President Trump has made allusions to secret powers that he has that we don’t know about. Is he making that up?”