Perils of Trump’s 'maximalist' executive power push revealed: legal scholar

President Donald Trump and his MAGA allies continue to push a far-right legal doctrine known as the "unitary executive theory," arguing that the U.S. Constitution grants presidents maximum executive power. But Harvard University legal scholar Noah Feldman, in an opinion column for Bloomberg News, counters that Trump and MAGA's "maximalist view" of presidential power is not only wrong — it is also a recipe for major corruption.

Feldman emphasizes that while presidents enjoy a certain amount of "executive privilege" under the U.S. Constitution, it is nowhere near as vast as MAGA Republicans are claiming.

"The Trump administration's latest assertions about executive privilege — that it protects the confidentiality of a president's communication with private advisers who aren't part of the government — are like too much else in this White House: politically unprecedented, legally wrong and morally dubious," Feldman writes in his Bloomberg column. "From a legal standpoint, the point of executive privilege is to protect communications that occur within the government, between the president and other public officials. Politically speaking, this is a naked attempt to protect the president from congressional investigation of potentially corrupt deals with his cronies, any of whom who could be called 'advisers' to avoid subpoena."

Never Trump conservative David French, in his New York Times columns and appearances on MS NOW (formerly MSNBC), has a lot to say about Trump and the unitary executive theory. Many Trump critics are complaining that Trump fails to recognize Congress as a "co-equal branch of government," but French goes a step further — arguing that the Constitution's system of checks and balances gives doesn't make Congress co-equal to the president, but gives the federal government's legislative branch even more power than its executive branch.

Feldman, in Bloomberg, urges Congress to fully exercise the legislative powers the Constitution grants them.

"If President Donald Trump invokes this executive privilege in future fights with Congress, as seems likely, the legislative branch cannot fold," the Harvard legal scholar stresses. "It must insist on its rights, bring the issue to court, and force the Supreme Court to reject the claim ... Historically, OLC (the U.S. Office of Office of Legal Counsel) has tended to adopt a maximalist position on presidential power ... But the doctrine of executive privilege has never been extended to conversations between the president and people who were not part of the government."

According to Feldman, Trump and his allies fail to understand "why executive privilege exists in the first place."

"The core idea is that the president should be able to get the advice he needs to run the government from the people who are best suited to provide it," Feldman notes. "Those people are government officials, who take an oath to uphold the Constitution and follow the laws. They are subject to all kinds of conflict-of-interest rules designed to make sure their advice is based on the national interest…. Donald Trump, the most corrupt president of the modern age, is asserting a broad new executive privilege designed to protect precisely corrupt cronyism. Neither Congress nor the courts can let that become the law."