Trump’s Hidden Powers—Really!

After considering one of Donald Trump’s seemingly outlandish boasts, “I have the right to do a lot of things that people don’t even know about,”  Elizabeth Goitein and Andrew Boyle felt a need to comment in an article for the New York Times.  It was titled Trump Has Emergency Powers We Aren’t Allowed to Know About (April, 2020), and was focused on actions that might be taken in response to the coronavirus crisis.

“The president is right. Some of the most potent emergency powers at his disposal are likely ones we can’t know about, because they are not contained in any publicly available laws. Instead, they are set forth in classified documents known as “presidential emergency action documents.” 

“These documents consist of draft proclamations, executive orders and proposals for legislation that can be quickly deployed to assert broad presidential authority in a range of worst-case scenarios. They are one of the government’s best-kept secrets. No presidential emergency action document [PEAD] has ever been released or even leaked. And it appears that none has ever been invoked.” 

This issue extends far beyond the coronavirus realm.  There seems no limit to what an unhinged president could claim the right to do.  And it seems no one outside the executive branch has access to what is contained in them.

“The most notable aspect of presidential emergency action documents might be their extreme secrecy. It’s not uncommon for the government to classify its plans or activities in the area of national security. However, even the most sensitive military operations or intelligence activities must be reported to at least some members of Congress. By contrast, we know of no evidence that the executive branch has ever consulted with Congress — or even informed any of its members — regarding the contents of presidential emergency action documents.” 

Andrew Cockburn picked up on those thoughts and provided an extended discussion in the most recent issue of Harper’s Magazine (November, 2020): The Enemies Briefcase: Secret powers and the presidency.  He begins by suggesting that most might believe that the most sobering briefing a new president receives is the one detailing his duties and responsibilities with respect to the nation’s nuclear weapons.  But then reveals a session that would be even more serious and troubling if the public knew about it. 

“At some point in the first term, however, experts surmise that an even more secret briefing occurs, one that has never been publicly acknowledged. In it, the new president learns how to blow up the Constitution.”

“The session introduces ‘presidential emergency action documents,’ or PEADs, orders that authorize a broad range of mortal assaults on our civil liberties. In the words of a rare declassified official description, the documents outline how to ‘implement extraordinary presidential authority in response to extraordinary situations’—by imposing martial law, suspending habeas corpus, seizing control of the internet, imposing censorship, and incarcerating so-called subversives, among other repressive measures. ‘We know about the nuclear briefcase that carries the launch codes,’ Joel McCleary, a White House official in the Carter Administration, told me. ‘But over at the Office of Legal Counsel at the Justice Department there’s a list of all the so-called enemies of the state who would be rounded up in an emergency. I’ve heard it called the “enemies briefcase”’.” 

And it gets even worse because Congress has, in addition, granted presidents so many rights they can call up in an emergency that Congress can’t even remember all of them.  But you can be sure that the executive branch has them all nicely tallied.

“Part of what makes the existence of PEADs so alarming is the fact that the president already has a different arsenal of emergency powers at his disposal. Unlike PEADs, which are not themselves laws, these powers have been obligingly granted (and often subsequently forgotten) by Congress. They come into force once a president declares a state of emergency related to whatever crisis is at hand, though the link is often tenuous indeed. For example, to fight the war in Vietnam, Lyndon Johnson used emergency powers originally granted to Harry Truman for the Korean War. As Goitein has written, the moment a president declares a ‘national emergency’—which he can do whenever he likes—more than one hundred special provisions become available, including freezing Americans’ bank accounts or deploying troops domestically. One provision even permits a president to suspend the ban on testing chemical and biological weapons on human subjects.”

“Thinly justified by public laws, these emergency powers have become formidable instruments of repression for any president unscrupulous enough to use them. Franklin Roosevelt, for example, invoked emergency powers when he incarcerated 120,000 Americans of Japanese ethnicity. One of them, Fred Korematsu, a twenty-three-year-old welder from Oakland, California, refused to cooperate and sued. His case reached the Supreme Court, which duly ruled that the roundup of U.S. citizens had been justified by ‘military necessity.’ Justice Robert Jackson, one of three dissenters, wrote that though the emergency used to justify the action would end, the principle of arbitrary power sanctified by the court decision ‘would endure into the future, a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need’.”

There have been attempts to bring these emergency powers under congressional control, but first one had to discover what they were.  

“In 1972, a number of senatorial elders, including the Republican Charles Mathias of Maryland, having noted the use of antediluvian emergency powers to prosecute the disastrous Vietnam War, had instituted the Special Committee on the Termination of the National Emergency. Co-chaired by Church and Mathias, its task was to unearth and revoke those emergency powers that were authorized by Congress and subsequently forgotten.” 

“The first problem faced by the committee was to find out what emergency powers existed. ‘This,’ read a 1973 report, ‘has been a most difficult task.’ Nowhere in government was there a complete catalogue detailing these emergency laws, which were buried within the vast body of laws passed since the first Congress. ‘Many were aware that there had been a delegation of an enormous amount of power, but of how much power no one knew,’ the committee said.”  

Fortunately, the committee did not have to read every law ever passed in search of the information.  They discovered that the required 87 volumes had been digitized by the Air Force and stored in a location safe from nuclear warfare.  They found what they needed by searching for keywords that might indicate an elaboration of emergency powers.

The initial report the committee issued included this quote. 

“A majority of Americans alive today have lived all of their lives under emergency rule. For forty years, freedoms and governmental procedures guaranteed by the Constitution have, in varying degrees, been abridged by laws brought into force by states of national emergency.” 

Cockburn provides a few notable examples of how ancient emergency provisions have controlled our actions. 

“In addition to [Lyndon] Johnson’s use of Truman’s Korean War powers, the committee noted that FDR had relied on an old wartime measure, introduced by Woodrow Wilson in 1917, to close the banks in 1933 in response to the Great Depression…a Civil War–era emergency law enabling cavalry on the Western plains to buy forage for their horses had been used to skirt Congress in financing the war in Vietnam.”

“Before the committee’s investigation, no one had realized that ‘temporary’ states of emergency could become permanent. ‘Because Congress and the public are unaware of the extent of emergency powers,’ it found, ‘there has never been any notable congressional or public objection made to this state of affairs. Nor have the courts imposed significant limitations.’ The drafters of these emergency powers, whoever they were, ‘were understandably not concerned about providing for congressional review, oversight, or termination of these delegated powers’.”  

In trying to pass legislation to correct the situation, the committee encountered the wrath of such proponents of executive power as Henry Kissinger, Dick Cheney, and the now infamous William Barr.

“Little wonder, then, that the effort ‘to terminate the national emergency’ failed. The bill did manage to abolish existing states of emergency. (This provision was supposed to kick in after six months, though it was pushed back to two years.) But automatic suspension of new emergencies, as originally proposed, gave way to a requirement that Congress should meet twice a year ‘to consider a vote’ on termination. Its force thus quietly diluted, the bill finally became law in 1976, whereupon Congress swiftly forgot about it, never once meeting to vote on whether to end states of emergency. The provision allowing Congress to end them through a ‘concurrent resolution’ that did not require a president’s signature was obviated by a Supreme Court decision in 1983, and any such resolution has required a veto-proof majority ever since.”

Not only did Congress fail to limit executive power to take “emergency actions,” it managed to assign the presidency even more power.

“So total was Congress’s failure to follow through on limiting emergency powers that in 1977 it actually voted to expand them. That year, it passed the International Emergency Economic Powers Act, which enables the president to declare national emergencies ‘to deal with any unusual and extraordinary threat’ that ‘has its source in whole or substantial part outside the United States.’ The law empowers presidents to sanction countries, businesses, and individuals without warning, without furnishing evidence, and, effectively, without appeal.”

Being aware of the dangers that a rogue president posed when in possession of an emergency declaration, a number of notables issued a warning.

 “In June, [Joel] McCleary and Mark Medish, a senior National Security Council director under Clinton, joined [former senator Gary] Hart and former senator Tim Wirth to warn in Politico that in the event of ‘a national emergency on the grounds of national security, the president would have more than 120 statutory emergency powers’ at his disposal, potentially enabling him to postpone the election. ‘It looks as though a rolling coup is underway, with Trump and his confederates testing the waters for ways to scupper the election,’ Medish told me recently. Democratic leaders are meanwhile cautious, he said, ‘about doing anything that might demoralize voters by drawing too much attention to unconventional election threats,’ which they feel would risk depressing the vote.”

Even if Trump makes no move before the election, he has options for mischief if he is unhappy with the result.  And if he accepts a loss, he will still be president for nearly three months.  What havoc might a completely unhinged and completely unconstrained president cause in that interval?