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Donald Trump And His Constitutional Conflicts

Donald Trump in Montoursville, Pennsylvania on May 20.

Just before boarding Marine One on the south lawn of the White House on Monday evening, President Donald Trump was asked by a reporter why he was defying a Congressional subpoena seeking testimony from Don McGahn, his former counsel.

McGahn, a key witness to the events weighed by Special Counsel Robert Mueller when he was deciding whether the president, obstructed justice by trying to derail federal prosecutors’ Russia probe, but the Justice Department asserted in a legal memorandum on Monday that “Congress may not constitutionally compel the president’s senior advisers to testify about their official duties.”

Trump took that memo as a cue to order McGahn to stay mum.

In Trump’s eyes, none of this should be thought of as partisan hardball or an effort to keep the Oval Office beyond the reach of the law and Congressional oversight. Instead, as he explained on the White House lawn, the Justice Department was embracing something larger and of greater consequence than even himself.

“Well, as I understand it, they’re doing that for the Office of the Presidency, for future presidents. I think it’s a very important precedent, and the attorneys say that they’re not doing that for me; they’re doing that for the Office of the President. So we’re talking about the future.”

Donald Trump

Despite the extent to which Attorney General William Barr’s recent blocking-and-tackling for Team Trump has tainted the Justice Department’s reputation and undermined old-fashioned notions like “law enforcement,” the agency’s reasoning (if not its motivation) may, at first glance, appear sound on this one.

President Donald Trump speaks to reporters on the South Lawn before leaving the White House
President Donald Trump speaks to reporters on the South Lawn before leaving the White House

In giving Trump a legal basis for blocking McGahn’s testimony, Barr’s department cited nearly five decades of what it described as bipartisan consensus within the agency that “testimonial immunity is rooted in the constitutional separation of powers and derives from the President’s independence from Congress.”


All well and good – in theory. The Trump presidency, however, has a way of turning theory, and values, on their heads. In the blink of an eye on Monday evening, Trump dropped any pretense of being a constitutional scholar protecting the presidency’s future when a reporter followed up the McGahn question with an inquiry about a separate ruling.

Is it the presidency he, Barr, and Engel envision, unfettered by Congress and an imperial force unto itself? Or does it remain largely within the boundaries that the Constitution and its framers defined and which Mehta affirmed in a ruling that offered a rich history of Congressional oversight and the separation of powers?

While you’re busy making up your mind, the president of the United States is happy to poison the well. After climbing aboard Marine One on Monday night he flew to a rally in Pennsylvania. “Maybe if we really like it a lot and if things keep going like they’re going, we’ll go and we’ll do what we have to do, and we’ll have a three [term presidency] and a four, and a five,” he told the crowd there. He went on to accuse those who were “spying on our campaign” of “treason” amid chants from the crowd of “lock them up, lock them up.”

“Well, we have a great new attorney general who’s gonna give it a very fair look, very fair look,” the president assured the crowd.

Business Insider helped with this article.

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