Moving away from checks and balances

Justice William O. Douglas wrote, "As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air -- however slight -- lest we become unwitting victims of the darkness."

The intense partisanship surrounding the Trump impeachment, and more generally around the Trump presidency, has obscured the extent to which we have moved away from checks and balances and to an authoritarian presidency perhaps more than ever before in American history. Lest this seem hyperbole, consider the legal developments of the past year.

The president spends money without congressional authorization, in fact in open defiance of Congress' choice not to appropriate it. The Constitution says, "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." Under the Constitution, Congress has the power of the purse and it is impermissible for the president to spend money without specific statutory authorization.

No such authorization exists for building the border wall. President Donald Trump repeatedly urged Congress to provide such funds. Even when Republicans controlled both houses of Congress, from 2017-2019, Trump could not get this authorization. A year ago, the government shut down for a month because Congress would not appropriate the funds Trump wanted to build the wall. But President Trump then spent the money unilaterally without congressional approval by claiming a national emergency. The National Emergencies Act of 1976 says that if there is a national emergency, funds in the Defense Department budget that are not "obligated" can be used for construction projects to support the armed forces. It says: "Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize Secretaries of the military departments to undertake military construction projects, that are necessary to support such use of the armed forces." The statute is about construction projects to support the armed forces. Trump's wall is not about that at all. But just last week, it was announced that the president plans to divert billions of dollars more for the wall that have not been approved by Congress.

Because of a Justice Department policy that a sitting president cannot be indicted, the special counsel for the Justice Department, Robert Mueller, refuses to opine on whether the president engaged in obstruction of justice. Robert Mueller's report details the evidence and leaves no doubt that Donald Trump engaged in obstruction of justice with regard to the investigation of Russia's meddling in the 2016 election.

Mueller said, though, that he was obligated to follow a Justice Department policy, first announced in 1973, that a sitting president cannot be indicted. Nowhere does the Constitution say this and no court decision ever has held this. Mueller said that because of this policy, it was inappropriate to express conclusions about whether President Trump committed a crime because he would never have a court proceeding in which to respond. Assuming this is followed in the future, no president can be criminally indicted and no Justice Department investigation even can say whether a crime has been committed. And there is no other official to do this because the statute providing for an independent special prosecutor no longer exists.

The president disobeys and orders all of his aides to disobey congressional subpoenas as part of an impeachment investigation. In every prior presidential impeachment investigation -- for Andrew Johnson, Richard Nixon, and Bill Clinton -- there was compliance with subpoenas. If impeachment is to be a check on the president, Congress must have the ability to investigate conduct that might constitute "treason, bribery, or other high crimes and misdemeanors."

The second article of impeachment voted by the House of Representatives against Donald Trump was for failure to comply with these subpoenas. The Senate's acquittal on this count surely will embolden future presidents to act just as Donald Trump did and not comply with congressional subpoenas.

The president claims that no one -- not the courts, not Congress -- has authority to subpoena information from him or anyone with whom he is doing business. There are three cases pending before the Supreme Court, to be argued on March 31, in which Trump is claiming that the president has broad immunity from any subpoenas.

The issue in Trump v. Vance is a state court grand jury subpoena for eight years of Trump's business and personal records in connection with an investigation of hush money that was paid during the 2016 campaign to Stormy Daniels and Karen McDougal. A second case, Trump v. Mazars USA, involves a subpoena by the House Oversight and Reform Committee to Trump's accountants, which is investigating the hush money payments, Trump's financial involvement with Russian companies, and the accuracy of financial statements he made to obtain loans and reduce taxes. The final case, Trump v. Deutsche Bank AG, involves subpoenas from the House Financial Services and Intelligence Committees that were directed at two financial institutions that did business with Trump, Deutsche Bank and Capital One.

If President Trump prevails, these avenues to investigating illegal acts by a president, even during his campaign before being elected, will be foreclosed.

The Senate shows that impeachment is a meaningless check so long as a president's party sticks with him. The evidence was clear and overwhelming that Donald Trump used the powers of his office for his own personal political gain in conditioning military aid to Ukraine on their investigating Joe Biden, his potential rival, and Hunter Biden. There is no doubt that "high crimes and misdemeanors" was meant to include serious abuses of power, as Alexander Hamilton explained in Federalist Number 65.

But none of this mattered as Republicans, with one exception, voted against removing the Republican president. Surely, this will be the blueprint for the Senate in the future, whether it is a Democratic or a Republican president facing impeachment investigation. It is impossible to see how there ever will be a two-thirds vote in the Senate to remove a president. And future presidents will know this and realize that impeachment is annoying, but a toothless threat.

So put it altogether: A president cannot be indicted or even accused of a crime by the Justice Department. A president doesn't have to comply with subpoenas and perhaps even those he does business with will not need to do so, whether it is a criminal or a congressional investigation. The president can disregard Congress' spending power and its decision to refuse to appropriate money, spending it anyway. Impeachment is a meaningless threat.

At the very least, we are in the dangerous twilight William Douglas described, if not already descending into the darkness of a president who is above the law. 