OP-ED: Trump is abusing his power again

Noah Feldman
Bloomberg Opinion (TNS)
President Donald Trump gives a thumbs-up to members of the media as he walks across the South Lawn as he arrives at the White House in Washington, Sunday, Aug. 9, 2020, after returning from Morristown, N.J. (AP Photo/Andrew Harnik)

President Donald Trump is pressuring Attorney General William Barr to announce the results of the ongoing Russia probe, which would violate Department of Justice guidelines designed to prevent the department from influencing elections. Of course, influencing the election is exactly what Trump wants Barr to do. Trump is once again using the unique power of the presidency to gain an unfair advantage in the 2020 election.

The pattern is by now eerily familiar. It’s the same impulse manifest in Trump’s undermining of the U.S. Postal Service at just the moment it faces the responsibility of handling a surge of mail-in ballots. And it’s identical to the conduct for which Trump was impeached by the House of Representatives.

Although it may seem like eons ago, it was only last December that Trump was impeached for abusing the power of the presidency to distort the 2020 election by harming the candidacy of Joe Biden. That was, the House determined, the purpose of Trump’s call to Ukrainian president Volodymyr Zelenskiy.

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And in Trump’s Senate trial, which ended with Republicans declining to remove him from office, the president’s supporters all but admitted to the pattern. As you’ll remember, their main defense was not that the president hadn’t used his office to try to gain an advantage, but that even if he had, the abuse of power didn’t count as an impeachable offense.

The latest Barr affair is about as explicit an abuse of presidential power as you can imagine. Long-standing Department of Justice guidelines issued under the authority of the attorney general say explicitly that “politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.” The guidelines are implemented via a norm that the department should not make disclosures about politically sensitive investigations in the 60 days before an election. (This norm is perhaps most famous for having been breached by James Comey in 2016 when he made the ill-advised decision to announce the reopening of the Hillary Clinton email investigation.)

In an interview last week, Trump all but ordered Barr to ignore the rule, telling Maria Bartiromo that “Bill Barr has a chance to be the greatest of all time, but if he wants to be politically correct he’ll be just another guy because he knows all the answers.” His obvious point was that if Barr followed the guidelines, that would be “politically correct,” i.e. bad; but that if Barr ignores the guidelines, that would make him the AG GOAT, at least as far as Trump is concerned.

Then Trump made it explicit that he wanted Barr to break the guidelines in order to gain an advantage over Biden: “He knows what they have,” the president said, “and it goes right to Obama and it goes right to Biden.”

Barr has said he won’t “do anything inappropriate” before the election. But he’s also hinted that he won’t apply Department of Justice guidelines to the investigation.

Regardless, the point is that Trump is using the presidency to gain an electoral advantage over Biden that he couldn’t get if he weren’t the president.

The undermining of the U.S. Postal Service also fits the pattern perfectly. It’s not only that Trump’s appointed postmaster general is reducing staff and slowing mail delivery at precisely the moment where more staff will be needed to handle mail-in votes in this pandemic election. Much worse, the post office sent official notice to 46 states and the District of Columbia that it could not guarantee that mail-in ballots would arrive in time to be counted. The purpose of these letters was to undermine confidence in the mail-in electoral process, which is thought likely to help Biden more than Trump. And don’t even get me started on Trump’s post office-related tweets.

The post office is part of the executive branch. Once again, the president is using the tools of his office to try to gain an unfair electoral advantage in his contest against Biden. That’s the classic definition of an abuse of power aimed at undermining a free and fair election.

At the risk of repeating what should by now sound familiar, the framers of the Constitution were very worried about the danger that the president would abuse the powers of his office to try to distort electoral results. They were so worried about the possibility that the president would “spare no efforts or means whatever to get himself re-elected” that they included impeachment in the Constitution to address the risk.

The fact that Trump was not removed from office after his Senate trial should not distract us from the reality that he is back to his old tricks. As far as he’s concerned, the Senate trial confirmed that he has every right to use his presidential power to warp electoral democracy. The only solution now is to overcome his unfair advantage with superior numbers at the polls, and vote him out of office.

— Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”