Opinions Until Trump leaves, he still has tons of power to harm the country
Although House Democrats are moving forward with impeachment proceedings, a conviction won’t occur before President Trump leaves office — and his Cabinet shows little interest in invoking the 25th Amendment to remove him. That means we face the prospect of eight days in which Trump, who incited an attack on the U.S. Capitol last week, controls all the formidable instruments of executive power. Should Trump decide to wreak more havoc, the consequences may hinge on the consciences of officials charged with executing the president’s orders.
Last week, Trump exercised his informal authority through his bully pulpit to encourage his supporters to interfere with Congress’s counting of electoral college voters. Without slighting the tragedy that ensued, it is worth emphasizing how much worse it could have been had the president invoked the formal legal powers at his beck and call. It remains a live risk that he uses those powers now. And this situation should cause Congress and the courts to rethink just how much power they have granted the president.
In his last days in office, Trump has potent tools that might be wielded against the republic — or that could lead to destabilizing international conflict. The statutes setting forth the military chain of command, for example, vest him with unyielding authority relative to his secretary of defense — who is in this case a loyalist serving as acting secretary (Christopher C. Miller). While soldiers are not required to follow unlawful orders, officers have always been exceedingly leery of claiming broad power to second-guess the legality of civilian instructions. A rightful safeguard of civilian control over the military in ordinary times, such deference, could have very different implications for the next week. It is not hard to imagine the White House ordering, say, a plainly unlawful military action against Iran. Imagine a targeted killing such as that of Qasem Soleimani, but with an even thinner legal justification. Or consider an actual incursion onto Iranian soil in violation of U.S. and international law.
Congress can be thanked also for a series of Insurrection Acts that assign broad authority to the president to decide whether to deploy military force within our borders. One provision gives the president power to call out troops if some “unlawful combination” or “conspiracy … opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” These provisions, critically, vest the president with broad power to make factual determinations of when such a “conspiracy” exists. And while Congress in 1948 barred troop deployments at polling places during elections, there are few other formal restrictions on the power to quash “insurrections.”
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