There is something striking about the cover of this important new book. I’m referring to the back cover, the book’s billboard, which features an unusual mix of endorsements. The first praise is from would-be president Hillary Clinton. She is followed by James Comey, her chief exonerator or tormentor, depending on your point of view. Then there’s George Conway, prominent lawyer and tweeter, who is married to Trump adviser Kellyanne Conway. It is not a likely dinner party, even if Graydon Carter were to host. (Spoiler and disclosure: the lowest-billed blurb on the back cover belongs to yours truly.)
The diversity of encomium surely says something about the quality of Unmaking the Presidency but is perhaps even greater testament to the broad esteem in which its authors, Susan Hennessey and Benjamin Wittes, are held on issues of law and national security. Their Lawfare blog and related podcasts are an oasis of reasoned, footnoted expertise in a vast desert of overheated rhetoric, surmise, and spin.
Everyone’s Favorite Book Subject
This is a book about President Donald Trump. Such books are a cottage industry of late. Michael Wolff gave us two semi-trusted tours of the Trump White House. Bob Woodward’s Fear offered less adversarial reportage on its inner workings. James Comey, Josh Campbell, and Anonymous presented personal testimony to explain their fears for the future. Then there are the impeachment books, published and pending.
Clinton, Comey, Conway: the book’s endorsers comprise an unlikely dinner party.
Unmaking the Presidency does something different. It aims to place Trump in historical context, to position him correctly on the continuum of American presidents with regard to a range of important axes. On truth-telling, for example, how does his mendacity compare? On ethics, where to rank his self-dealing? On decision-making, just how chaotic is his White House? And so on and so on. On most of these scores, Donald Trump is—to borrow a phrase—winning. He is the outlier of outliers.
The book begins with a meditation on the catechism that officially birthed this presidency: the oath of office. The authors remind us of the fairly widespread and naïve expectation (wish?) that the office of the presidency, commencing with that solemn public oath, would tame Donald J. Trump—that the oath might be some forceful hinge on which he would “pivot” to becoming presidential. But, as the authors write, “any hope that the presidency would discipline Trump, let alone tame him, vaporized quickly.” Instead, it was Trump who changed the presidency. But how much has he abused his power?
Abusive … but Legal
A bracing revelation: Donald Trump hasn’t gone so far as some people seem to believe. With all the talk of a president’s inherent Article II constitutional power, Trump, Hennessey and Wittes tell us, has not particularly stretched the legal bounds of his office. Despite his campaign talk of bringing back torture and jailing political opponents—abuses at “the edges of [presidential] authority”—Trump has more often misused his powers of appointment, termination, pardon, and executive order. These are well within his understood authorities, like it or not. “It turns out that one doesn’t need to push the limits of executive power to become an abusive president,” Hennessey and Wittes declare. Rather, President Trump has merely grossly abused the acknowledged powers of the office. Even as I write this, there is roiling controversy about whether the president had authority to order the killing of Iranian general Qasem Soleimani; he probably did, though typically he has mucked it up by providing exaggerated (or false) claims of imminent attacks on no fewer than four American embassies in the region.
This leads to a most vexing question. If Trump’s chief transgression is pushing the limits of acknowledged power, how does a nation check that kind of abuse? Can it? While the authors do discuss the lasting adverse impact of these abuses on the country, they do not offer solutions to undo Trump’s treatment of the office.
On most scores, Donald Trump is—to borrow a phrase—winning.
Even if Wittes and Hennessey can’t offer us a way out, they do treat us to a wide-ranging and fascinating collection of contextual history. Each chapter is a smorgasbord. We are taken on a tour of tweets, historical records, archival material, news stories, fact-checks, and more. Past and present swirl together. Ron Chernow’s estimations of Ulysses S. Grant run in parallel with close readings of the Federalist Papers; Jonathan Swift’s 18th-century ruminations on the “art of political lying” are juxtaposed with Glenn Kessler’s Washington Post Fact Checker column.
Such historical support for the book’s conclusions makes for an entertaining and enlightening read. There are many good tidbits. Who remembers that President Jefferson ordered a prosecutor to bring a criminal case against Federalist printers who dared to call him immoral? That, in fairness, was before two centuries of norms and expectations about both the presidency and the independence of law enforcement developed. Still, it is bracing to be reminded of so many seeming sins by presidents our generation holds in high regard, by way of comparison.
Sessions’s Sin
In the chapter nearest and dearest to my heart, about Trump’s attempts to corrupt the Department of Justice, the authors examine Trump’s focused erasure of the line between law enforcement and politics. Here, in an account of Trump’s humiliating and asymmetrical power struggle with Jeff Sessions over the then attorney general’s recusal from the Russia investigation, they make an important observation about the source of Trump’s transgression. “Sessions’s sin,” they write, “had been not the recusal itself, but the attitude that lay behind it: the belief that the attorney general has a higher duty than deploying the power of the Justice Department on behalf of Trump.”
This book was written (like the Mueller report) before the arrival of “l’Affaire Ukrainienne” (their words). Not to be overtaken by events, however, the authors offer a postscript, in which they refer to Trump’s pressuring of Ukraine to investigate the Bidens as a “capstone scandal, combining the many abusive features of the personalized, expressive presidency that we have discussed.” The authors provide an incisive journey back through their principal theses, reviewing each chapter to illuminate how the scandal is a predictable conclusion to Trump’s various attacks on the rule of law—his bellicose rhetoric, his gutting of the executive branch, his use of the Justice Department for personal gain, and his abandonment of institutional process.
Returning to the titular question: Has Trump unmade the presidency? If so, can it be remade and should it be? That depends, of course, quite a bit on whether there is a second term, on whether voters “ratify” these changes. In an important way, this book is not only historical analysis but also an erudite, though not especially legal, brief advocating against a second Trump term. It is a worthy read from two fine and relevant minds.
Preet Bharara served as U.S. attorney for the Southern District of New York from 2009 to 2017. He is the host of Cafe’s Stay Tuned with Preet and the author of Doing Justice
