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New: Harvard Prof outlines limits to presidential power

Carol Polsgrove
Wednesday February 01, 2017 - 01:15:00 PM

With posters on social media spreading the notion that a coup is in process, I suggest we take time to listen to what Harvard Law School professor Jack Goldsmith has to say about the limits to presidential power.

In an interview with The Cipher Brief, Goldsmith acknowledges the range of powers Presidents George W. Bush and Barack Obama have exercised ever since Congress authorized use of force after the 9/11 attack. In the nearly 15½ years since then, he says, presidents have used “extensive military force, expanded surveillance at home and abroad, detention without trial, and much more.”

Still, Goldsmith notes significant checks on presidential power. Civil society groups like the ACLU can file lawsuits and issue reports. The press “is more motivated than ever to hold Trump accountable.” He also counts on the judiciary and even Congress to restrain Trump “if he engages in excessive behavior.” 

Then there are bureaucrats inside the executive branch who “have expertise, interests and values, and infighting skills that enable them to check and narrow the options for even the most aggressive presidents.” (We are seeing such a push-back now in the dissent cable signed by around 1,000 State Department employees who object to Trump’s executive order barring citizens from seven countries with Muslim majorities) 

In short, Goldsmith predicts that Trump could threaten to do illegal things like creating a Muslim registry, but he won’t be able to carry them out. 

I wouldn’t take too much solace from this point, however,” he warns, “since a president can do many things that are lawful but awful.” 

Goldsmith knows whereof he speaks: he served in the George W. Bush administration as Assistant Attorney General and as Special Counsel to the General Counsel to the Department of Defense. He is author of The Terror Presidency: Law and Judgment Inside the Bush Administration


(Stay tuned to the BDP for updates on legal commentary on the Trump administration.)