During the run-up to the 2003 US invasion of Iraq, the George W. Bush administration often deployed a pet mixed metaphor, which originated with then–national security adviser Condoleeza Rice: We don’t want the smoking gun to be a mushroom cloud. In the mode of rudderless geopolitical scaremongering that took hold in the wake of the September 11 terror attacks, the underlying appeal was unmistakable: If our national sanctums of war-making aren’t granted unqualified power, the world itself may just be headed for nuclear annihilation. Don’t say we didn’t warn you.
It’s a safe bet that none of these prophets of geopolitical doom anticipated sensitive national security data—including, per a recent Washington Post report, high-level intelligence about another nation’s own nuclear capabilities—ending up in a virtual trophy case at a former president’s Florida resort home. Nor could they have imagined that said former president—who had been notoriously bored by his own intelligence and national security briefings while in office—might have earmarked such sensitive nuclear data for possible chit-trading with various foreign actors. But you know the old saw from Marx’s Eighteenth Brumaire: first time tragedy, second time farce.
Now that Trump’s lawyers have managed to exploit the corrupt federal judiciary in their client’s favor to force a “special master” review of the classified documents that the FBI collected last month at his Mar-a-Lago compound, his presidency represents a limit test of the long-standing American cult of executive privilege. The solemn rationale for this ritual prostration before executive power—particularly in the wake of the trauma of the September 11 attacks—was that the American state could ill afford not to grant maximal powers to the American commander in chief. It was a dark and ugly world, as Bush’s vice president, Dick Cheney, never tired or reminding the public, and it was only to be expected that the country’s resolute and pragmatic leaders should be empowered to move freely and unaccountably through the “dark side” of world affairs. What this meant in practical terms was that the United States endorsed a regime of extraordinary rendition and torture under the color of national self-defense—and the Bush White House’s Office of Legal Counsel duly promulgated a GWOT-upgrade of the old Nixonian dictum: “When the president does it, that means it is not illegal.”
“Ever since the atomic bombing, the presidency has this presumed responsibility for protecting the American people,” says Rutgers University diplomatic historian Lloyd Gardner. “So you have a situation here where questions of national security have promoted the presidency to an unassailable position of power. You challenge him, you challenge national security.” Oval Office abuses of this power have been legion, from the litany of Cold War–sponsored US coups in Europe and the developing world to the Gulf of Tonkin resolution to the Iraq invasion. But the Bush presidency’s theory of an untrammeled “unitary executive” turbocharged the era of the imperial presidency into something closer to a sovereign one. The Obama years did precious little to claw back such powers, with that administration’s dismal record on government secrecy and drone warfare. Under Trump, the rationale behind the unitary executive became crassly personalized, as is the general pattern with Trump-branded exercises of power. But the differences between such executive license in the Trump White House and the George W. Bush administration are mostly of degree rather than of kind.
Some legal scholars of executive power note that even the expansive Bush-era version of the unitary executive could prove insufficient in Trump’s efforts to conscript it into service as a shape-shifting rationale for impunity, in and out of office. “I think the unitary executive theory presupposes that there’s only one executive,” says Steve Vladeck, the Charles Allen Wright Chair in Federal Courts at the University of Texas Law School. “So that when you have all this central power and you’re no longer the executive, that should stop. There has to come a point where you are either being naked hypocrites or you put principle into play. It’s a test for how much these folks really believe in the unitary executive.”
Another key test, Vladeck notes, is for the national legislature to take up its atrophied role as a check on the executive branch’s ambitions. The problem with the court case surrounding the FBI search on Mar-a-Lago “is that we’re being distracted by the bright lights,” he says. “A lot of the proposed structural reforms that Congress could enact to create better executive accountability—none of these has been enacted. That is what happened after Nixon—the mid-to-late 1970s is one of the periods of the most aggressive reforms enacted to restrain executive power. The fact that we’re not seeing a similar reaction now is very concerning. After Nixon, there was bipartisan consensus on reform in Congress because the separation of powers was bigger than the separation of parties.”
In the meantime, leaving such questions to the Trumpified federal judiciary is a dicey proposition, as the decision handed down by Florida Southern District Judge Aileen M. Cannon granting Trump’s request for a special master in the Mar-a-Lago case makes painfully clear. That ruling was another bridge too far for many defenders of the Bush-style unitary executive. “An amicus brief was filed by officials who served in Republican administrations in high-level capacities,” says Praveen Fernandes, vice president of the Constitutional Accountability Center. The brief’s signatories included “heads of agencies, and people who deal with not only questions of executive power but also with issues involving the highest levels of security clearance,” he adds. “And they explained in detail how executive privilege does not apply here. And Judge Cannon here made the highly unusual decision to reject that amicus brief. I am unaware of a single instance in which well-respected subject-matter experts submitted an amicus brief and it was rejected. Now of course a judge can unpersuaded by the arguments in an amicus brief, but to make a show of rejecting it for the record is unheard of.”
It’s the same deference before opaque power grabs for reasons of state that informs so much distorted thinking about executive power, notes Karen Joy Greenberg, director of the Center on National Security at the Fordham School of Law and the author of Subtle Tools: The Dismantling of American Democracy from the War on Terror to Donald Trump. “This was an accident waiting to happen,” she says of the Mar-a-Lago fiasco. “The amount of power given to the president and the executive in the war on terror, and never really reined back in, has led us to this mess. Here’s the conundrum—two things have to happen at the same time. First, we need a recalibrating of the relationship between national security and the powers claimed by the president, and second, as a country we have to work our way out of this legal morass.”
Trump’s abuses of secrecy and security powers, she notes, are very much of a piece with the unitary executive’s prerogatives as the legal prosecutors of the terror wars envisioned them—and voting him out of office wasn’t sufficient to quell them. “Under the right circumstances in the war on terror, you can just claim national security as the rationale for power—the law was a malleable part of this, as the Department of Justice was just there as a partner. The fact that none of this was addressed in a policy means that we’ve failed to address the issues here.”
It’s thus not all that surprising that the course of the Mar-a-Lago case through the judiciary leads us back to the high-stakes outcome of November’s midterm balloting. “History is long,” Vladeck says as he sizes up the prospects for change. “Maybe if the Democrats somehow hold on to the House and Senate, that could be seen as a mandate for new reforms.”