Donald Trump loves to boast about the immense powers at his disposal. As Andrew Cockburn writes in the November 2020 issue of Harper’s Magazine (subscription may be required):
“I have the right to do a lot of things that people don’t even know about,” he boasted in March, ominously echoing his interpretation of Article II of the Constitution, which, he has claimed, gives him “the right to do whatever I want as president.” He has also declared his “absolute right” to build a border wall, whatever Congress thinks, and even floated the possibility of delaying the election “until people can properly, securely, and safely vote.”
While most of his boasts have been responded to with well-deserved scorn as the the ranting of a very insecure person, this is one that is in fact valid. The far-ranging powers available to the president are enumerated in something PEADs (Presidential Emergency Action Documents). Shortly after they take office, presidents are informed about these powers at a session but they have been kept a closely guarded secret from the public for fears that their alarmingly anti-democratic nature would provoke calls to repeal them. But Trump’s vanity and need to boast about his power have put them out in the open.
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 oðcial 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.’ ”
These chilling directives have been silently proliferating since the dawn of the Cold War as an integral part of the hugely elaborate and expensive Continuity of Government (COG) program, a mechanism to preserve state authority (complete with well-provisioned underground bunkers for leaders) in the event of a nuclear holocaust. Compiled without any authorization from Congress, the emergency provisions long escaped public discussion—that is, until Donald Trump started to brag about them.
Cockburn writes that over time, Congress has authorized various emergency powers that the president can use were supposedly to deal with specific situations but have remained on the books even after those conditions ceased to exist can be invoked by him at any time, just on his say so.
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.
In addition to 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. To his amusement, Shea even discovered that 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.
On the few occasions when Congress tried to roll back some of these dictatorial powers, administrations were able to successfully repel its feeble efforts.
When the Iran-Contra scandal was exposed, Congress professed outrage and went through the motions of an investigation that not only shrank from targeting Reagan himself or revealing the sum total of his minions’ misdeeds (including rehearsals for mass roundups of “subversives”), but ensured that the principal perpetrators escaped punishment entirely. George H. W. Bush attacked Panama without congressional approval (but fortified by a legal opinion from Assistant Attorney General William Barr) only a few years later, while Clinton would do the same in Serbia. George W. Bush used congressional authorization for military force against Al Qaeda after 9/11 to occupy Iraq, illegally wiretapping Americans all the while. Barack Obama broke new extra-constitutional ground in ordering the execution by drone of a U.S. citizen. None suffered more than brief censure, and all are now remembered with respect, even reverence.
I wonder if Trump will be tempted to invoke some of these powers if the election goes badly for him and declare that ahis opponents are ‘enemies of the state’. He may want to do so but declaring an emergency if he loses woful be tantamount to a coup and I doubt that the US military would go along with it.