Richard Painter (Getty Images)

Former Bush White House lawyer Richard Painter: "Trump will grab as much power as he possibly can"

Former GOP ethics lawyer Richard Painter says Trump is the "American Nero," and democracy is in extreme danger


Chauncey DeVega
March 9, 2020 11:00AM (UTC)

Donald Trump's presidency is a crisis. The examples are almost too numerous to list.

He and his regime have assaulted the rule of law, undermined the Constitution, and normalized fascism and authoritarianism in America.

Trump has publicly invited hostile foreign countries to interfere in America's elections in order to ensure that he stays in power — perhaps indefinitely. He uses Nazi-like language to threaten reporters, journalists, news outlets and other public voices who dare to criticize him.

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Trump and his regime have empowered white supremacists and other right-wing extremists by appointing them to senior policy-making positions in the federal government.

Trump and his regime are gutting the social safety net still further, literally shortening the lives of millions of the most vulnerable Americans.

Trump and his regime have ushered in an Orwellian reality where truth itself is under siege, fully mated with a kakistocracy and plutocracy. The federal judiciary has been filled with Trump's unqualified sycophants. Trump and Attorney General William Barr make threats against judges who do not do their bidding. Career government employees and other experts have been purged and replaced with unqualified Trump loyalists.

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Trump leads a political cult whose members are tied to him in a knot of collective narcissism and other pathological behavior. He has also shown himself to be mentally unwell. His state of mind has only encouraged his corruption, and greed, as well as total rejection of any sense of the common good and public service.

Republicans have effectively declared Trump a king or emperor by "exonerating" him in an impeachment show trial in the U.S. Senate. Right-wing Christian nationalists view him as a godlike figure, the "Chosen One."

At the urging of white supremacists like White House senior adviser Stephen Miller, the Trump regime is engaged in a campaign of "soft" ethnic cleansing against nonwhite American citizens as well as immigrants, refugees and migrants.  

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Trump is an unrepentant misogynist and sexist.

Unfortunately, the crisis that is Trump's presidency will not end once he leaves office or is forced out. Trump and his regime have done great harm to America's political institutions and culture -- harm that will take many years and decades to remedy. In fact, the Age of Trump has birthed horrible precedents that future American presidents, political leaders and the public at large will accept as a new "normal." Ultimately, the Age of Trump is both a political and cultural disaster — one that may get worse before it gets better.

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Are there any limits left on Donald Trump's assault on the rule of law and democracy? Could Trump order his political "enemies," such as leaders of the Democratic Party, arrested and sent to prison? After the impeachment show trial, is Trump now the de facto king of America? How does the Trump regime's assault on the rule of law set a dangerous precedent for future presidents? Should the framers of the Constitution be blamed for designing a system that has not been able to stop the Trump's regime's authoritarian assault on American democracy?

In an effort to answer these questions I recently spoke with Richard Painter, who was White House chief ethics counsel under George W. Bush. He is a frequent political commentator and analyst on CNN, MSNBC and other news networks. Painter is also a professor of corporate law at the University of Minnesota and the author of several books, including "Getting the Government America Deserves." He is also the host of "The Politics Podcast With Richard Painter." Painter's new book, co-authored with Peter Golenbock, is "American Nero: The History of the Destruction of the Rule of Law, and Why Trump is the Worst Offender."

This conversation has been edited for clarity and length.

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Given the Republican impeachment show trial in the Senate, where Donald Trump was acquitted of his many obvious crimes related to the Ukraine scandal, is he now a de facto king? Are there any real limits on his power?

There are Republicans in the Senate who, in order to get judges or other things they want in terms of policy, are willing to give Trump a pass and let him violate the Constitution. The voters need to punish the senators for making that choice. The president should also be punished by the voters as well for that behavior. The message in the near term to Trump is clear: Right now, he can get away with an awful lot because the vast majority of Republican senators won't stand up to him.

As a practical matter, what does it mean when Trump says he can do whatever he wants under Article II of the Constitution? At this point, he knows no one will stop him. He is threatening judges, he's interfering in trials. He has created an "office of denaturalization" within the Department of Justice to take away people's citizenship. This situation should terrify any thinking person.   

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Donald Trump is going to grab as much power as he possibly can, because Congress is not going to stop him. He's going to use that power to advance himself and his own political agenda and to protect his friends. For example, people like Roger Stone are protected. Trump and his allies can go after their enemies. This is a very dangerous situation. And to make matters even worse, the practical implications of Trump's power change every day because he is breaking norms every single day.

Why was Trump and the attorney general's interference in Roger Stone's trial so unusual?

Such a thing almost never happens. Almost as a rule the White House does not interfere in criminal proceedings. The president, of course, can pardon who they want. But that's the power granted to him under the Constitution to interfere with a criminal proceeding. But I have never heard of the president of the United States telling the attorney general what to do, and then the attorney general, for political reasons, tells prosecutors what to do. That is an unacceptable situation. Usually there is extraordinary pushback from Congress if a president or White House officials would dare to do such a thing.

Donald Trump's regime is now requiring loyalty oaths from government employees and firing people who are not sufficiently loyal to Trump. This is the kind of purge that one would see in an authoritarian regime.

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This is a very dangerous situation. There are two types of federal employees. Those who are covered by civil service laws and other protections can sue if they are removed from their jobs, except under very specific circumstances. For example, if they are transferred or demoted because of partisan politics. Under Trump we are seeing some version of those abuses. But unfortunately, what's happening with respect to many career government employees is that they've just resigned or quit out of frustration. The other people — the political appointees — technically can be removed for political reasons. But the Trump administration has gone far beyond what previous administrations have done in that regard.

Previous administrations do put members of their own political party in those positions. However, in doing so there is not insistence on personal loyalty to the president. The issue here with Trump is that career government employees are being fired not for their policy positions but because they wanted to pursue investigations of — and in some cases prosecute — political allies of the president. They are then punished for doing so by the Trump administration. Such motivations for the removal of political appointees are particularly disturbing and unprecedented.

The news media is, of course, focused on horse-race journalism and the 2020 election. Trump's behavior could set a precedent for the future and cause harm that will last long after the upcoming election. What concerns you the most about Trump's long-term impact on the country?

In my new book "American Nero," which I co-authored with Peter Golenbock, he and I examine the history and challenges to the rule of law in the United States. Yes, there were bad presidents long before Trump. But Donald Trump appears to be taking everything that is a bad precedent from our past and doing it again — and then doing even worse things. This is a unique challenge. The rule of law is actually being challenged by the Trump administration. The argument that a president has unlimited power under Article II of the Constitution is extremely dangerous.

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It's actually contrary to the real meaning of Article II and the Constitution. Donald Trump really believes that the Constitution and Article II tell him that he can do anything he wants — a belief that of course is based on a wrong understanding of the United States Constitution.

As a legal scholar, how do you make sense of all these events? 

I feel very concerned about our country's future. I am scared about where the United States of America is headed. Donald Trump is a president who has abused his powers. Yes, he can remove political appointees at will. Yes, they don't have civil service protection. But Trump cannot abuse his power to retaliate against government employees and public servants for testifying in a congressional investigation. Donald Trump has significant power, but he uses that power illegally. Donald Trump cannot fire government employees for providing accurate testimony in an investigation to Congress or a prosecutor.

The president has the power to pardon. But he does not have the power to dangle a pardon as a quid pro quo for keeping one's mouth shut. Here is an extreme example, one that has not happened yet. The president has the power to sign or to veto a bill. But if the president asks for a bribe to sign or to veto a bill, he has committed a crime. There are legal limits on the powers of individuals. Everyone, from the president on down to regular people, are governed by the laws of the United States of America. A president cannot take bribes. A president cannot use their power to obstruct justice. A president cannot retaliate against people. The Trump administration does not appear to understand or care about those facts. 

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During Trump's impeachment trial, Alan Dershowitz basically argued that Donald Trump is a king. Republicans appear to agree with that assertion, that Trump's personal interests are the country's interests if he says they are, and therefore, Donald Trump cannot break the law. Few people in the news media have been willing to address that clearly and directly. They have instead moved on to other matters.

This is the great risk to our republic, and indeed this is what happened to the Roman Republic. The senators were elected by the rich people — but they were elected. They were senators and they had considerable power. And then, as the Roman Empire grew, they granted more power to the consuls. A republic transformed itself over about 150 to 200 years into a dictatorship or empire, where the leader had absolute power. Nobody stopped it. This is a lesson in how over time a republic, such as America, can be turned into a dictatorship.  

Of course, a second example was the Weimar Republic in Germany, where over about 15 years a republic was turned into a dictatorship. In a matter of months after Adolf Hitler was appointed chancellor, he consolidated executive power very quickly under Article 48 of the German constitution, which said the president and the chancellor could do anything they want if there's an emergency. And then of course all a leader needed to do was declare an emergency and then it's game over. Peter Golenbock and I wrote "America Nero" precisely because we don't want there to be a third example of a republic becoming a dictatorship. The United States will become a dictatorship if we keep going along this path with Donald Trump.

During the Democratic presidential primary debates, none of the moderators asked any of the candidates what they will do if Trump refuses to leave office or if he cancels the 2020 election by declaring a state of emergency. What are the remedies for such a scenario? What do you think would happen?

If Donald Trump lost a very close election it could be a very awkward situation. If Trump lost an election where it's very clear that he was beaten, I would hope at a minimum that the majority of the senators, including the Republicans, would say, "OK, the game's up. We're going to get him out of there and try again in four years." But if it were a Bush versus Gore type of situation, where we are counting "hanging chads" and so forth, I don't know what would happen. Would the Supreme Court have the final say? Would Trump just say, "I'm not going anywhere until this is resolved to my satisfaction"? A close election could be a very bad situation in November, given what we know about Donald Trump and his supporters.

What also concerns me is that we are not having a serious discussion in this country about limits on executive power. We have not seen such a discussion during the Democratic primary debates, for example. We've had too much of this idea that the president gets to make all the decisions. I wanted to hear some of the candidates say, "When I'm president, I'm going to listen to Congress. I will also use executive orders only where I clearly have the power to do so." I also wish I had heard some of the Democratic presidential primary candidates talk about the limits and the power of the presidency. We do not have enough limits at present on the power of the presidency, and we need a lot more.

Is this a failure of the Constitution and the framers?

I believe it is not the failure of the framers. The framers of the Constitution certainly had their failures, most notably their approach to slavery, which caused the Civil War. At present, executive power far exceeds what the Founders ever contemplated. I would have to say that even going back to President Franklin D. Roosevelt, we've had a concentration of executive power that is in excess of what the founders would have contemplated.

But we as a country entrusted more and more authority to the executive. We've had the executive branch get us into wars, as with President Bush and Iraq. Now, of course, President Trump has been manipulating intelligence to serve his own hand, not the national security interests of the country. The growth of executive power has been a problem all along, before Trump ever came along. But Trump has made it much worse. Donald Trump is also the first president who is psychologically obsessed with himself and does not even think about using his power as president to help the country.  

Authoritarians do not make jokes. They make threats and then follow through on them. Trump uses Nazi language to attack the free press and freedom of speech. He attacks private citizens. He has repeatedly threatened to stay in office indefinitely. He has even said that Democrats are committing treason and should be punished accordingly.

If Trump follows through on this by declaring the Democratic Party illegal, imprisoning political opponents and shutting down media outlets who criticize him, what can be done to stop him? Given this perverse reading of the law, supported by Attorney General Barr, the Republicans as a group and his other enablers, he can do anything he wants.

That horrible scenario is one that could definitely occur. That is especially worrisome given that Justice Kavanaugh argued in a Minnesota Law Review article that the president should never be investigated, much less prosecuted while he's in office, because that would interfere with the power of the president. How far could Trump go? How far could a future president go? Are there any real limits on a president's power, given the recent developments we have seen? I don't know. I believe it is likely that Donald Trump put Kavanaugh on the Supreme Court precisely because of his extreme views of executive power.

There are eight months until Election Day 2020. What advice do you have for the Democrats?

The Democrats need to come together, back a candidate, and then market that candidate to the middle of the country. Unfortunately, the Democrats have been positioning themselves out in left field somewhere. They need to sell a candidate to the majority of the country.


Chauncey DeVega

Chauncey DeVega is a politics staff writer for Salon. His essays can also be found at Chaunceydevega.com. He also hosts a weekly podcast, The Chauncey DeVega Show. Chauncey can be followed on Twitter and Facebook.

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