Author:Healy, Gene

"I HAVE THE absolute right to PARDON myself," President Donald Trump announced via Twitter in June 2018. With that, he pitched a can of Sterno into the ongoing media firestorm over the special counsel's Russia investigation.

The last time a president contemplated a self-pardon was during the "final days" of Watergate. Nixon wasn't entirely in his right mind during this period: frequently drunk, possibly suicidal, incoherent, pacing the halls at night "talking to pictures of former presidents," according to his son-in-law. Still, even at his worst moment, Nixon had enough wits about him to know that trying to pardon himself would be crazy.

Trump seems to have arrived at a similar conclusion. His claims about his right to undermine the rule of law are frequent and contemptible. Yet as far as we can tell, they have mostly been rhetorical.

In the run-up to the 2018 midterms, for instance, the president threatened to issue an executive order revoking birthright citizenship--a move that would have flouted the plain language and legislative history of the 14th Amendment while putting more than 4 million Americans at risk of deportation. But this too seems to have been a pump fake designed to thrill the base and rile the media; it was abandoned after Election Day.

It's become a familiar pattern. Trump hits "send tweet" on some crank theory of absolute executive power. Law professors and pundits cancel their weekend plans, scrambling to figure out "Can he do that?"--only to realize, weeks later, that they needn't have taken him literally or seriously.

No president in living memory has been nearly as vocal about his contempt for the legal limits on his power; none has threatened half as often to throw them off. But again and again, Trump stares across the Rubicon, shrugs, and then heads back inside to live-tweet Fox News.

In the first hour of this presidency, just after Trump delivered his "American Carnage" inaugural address, George W. Bush supposedly remarked, "That was some weird shit." At this point, we can quibble only with W's use of the past tense: The current president's behavior has been so weird and unsettling that it's hard to get perspective on how bad we've got it. Trump's tweets, his insult-comic pep rallies, his general inability to act like a grown-up in a grown-up's job--everything about the 45th president distracts us from a clear-eyed evaluation of what he's actually done with the enormous powers he inherited.

Case in point: In January, The Atlantic marked the midpoint of Trump's tenure with "50 Moments That Define an Improbable Presidency," ranked "according to both their outlandishness and their importance." The former dominate the latter. By my count, 28 of the entries relate to Trump's freakish and often repugnant public conduct: using social media to share the wisdom of Benito Mussolini, referring to "shithole countries," firing his secretary of state via Twitter, and the like. Perhaps 10 of the 50 episodes feature the president misusing the powers of the office. "Trump threatens to press his 'nuclear button'" clocks in at number 17 on the parade of horribles--eight places behind his May 2017 tweet-burp, "covfefe."

But unsettling and repellent as Trump's behavior is, how he wields power has to matter more than what he rants about. It's entirely possible that Donald J. Trump is a terrible human being without a redeeming liberal impulse and not nearly as imperial a president as his two immediate predecessors. (Or at least not yet.)

In fact, a close examination of Trump's policies suggests that what we've got so far is the Xtreme Energy Drink version of what's been on tap for a long time. Like Four Loko, it clouds your vision, sours your stomach, and wrecks your head, but it may not be as lethal as the alarmists claim. In his first two years, Trump has aggressively exploited the powers he inherited, but--with very few exceptions--he hasn't really forged new frontiers in the expansion of executive power.


ABROAD, THE EXECUTIVE'S powers are at their apex. During President Barack Obama's final year in office, U.S. forces dropped more than 26,000 bombs on seven different countries. Nine months into his tenure, Trump had already blown past that tally. In 2017, he tripled the number of drone strikes Obama had ordered on Yemen the year before. In Somalia, he launched more than Obama had managed over two terms. In his first year, the self-styled "America First" president deepened entanglements on every foreign battlefield his predecessor left him, ramping up deployments, kill-or-capture missions, and civilian casualties.

But none of that required new claims of presidential power. Well before Trump took office, permanent war had become America's default setting, thanks in large part to the 2001 Authorization for the Use of Military Force (AUMF) that Congress passed three days after September 11.

Initially aimed at the perpetrators of the attacks and those who "harbored" or "aided" them, the AUMF by 2016 had been stretched by creative lawyering far enough to cover everything from boots on the ground in Tongo...

To continue reading