Trump’s Immunity Claim Joins His Plans to Increase Executive Power

From the courts to the campaign trail, former President Donald J. Trump is challenging a hallmark of American-style democracy: its suspicion of concentrated power.

The Supreme Court will hear arguments on Thursday over Mr. Trump’s claim that criminal charges against him in the federal election subversion case must be thrown out because the Constitution makes him all but immune from being prosecuted for actions he took as president — no matter what the evidence may show.

That vision of a presidency operating above the law dovetails with second-term plans that Mr. Trump and his allies are making to eliminate myriad internal checks and balances on the executive branch and to centralize greater power in his hands. That would include eliminating independent agencies and job protections for tens of thousands of senior civil servants.

While the legal theories behind Mr. Trump’s claim of absolute immunity and his plans to consolidate White House control are different, they are united by a common approach to governance. The power of American presidents has traditionally been seen as held in check by counterbalancing forces, but Mr. Trump is trying to grind down such constraints.

As he once declared to a cheering crowd of supporters in 2019, referring to the portion of the Constitution that creates and empowers the presidency: “I have an Article II, where I have the right to do whatever I want as president.”

Mr. Trump’s claim to absolute immunity recalls an assertion made by another former president who was known for an idiosyncratically broad view of executive power: Richard M. Nixon. In a 1977 interview, three years after he resigned to avoid being impeached over Watergate, Nixon declared, “When the president does it, that means that it is not illegal.”

That assertion has been widely seen as the epitome of an imperial view of the presidency. But the view he articulated was more modest than Mr. Trump’s because it appeared to be limited to situations involving national security.

At the time, Nixon was discussing his administration’s seemingly illegal surveillance of “subversive” domestic groups, which he justified as having been an effort to see if they were being secretly controlled by foreign powers. He was arguing that the Constitution implicitly bestows the president with the authority to lawfully violate statutes when necessary to protect the country’s security.

Among numerous baseless conspiracy theories Mr. Trump and his supporters manufactured or pushed in an attempt to justify blocking the certification of Joseph R. Biden Jr.’s Electoral College victory: that Venezuelans had somehow manipulated voting machine counts. But the bulk of Mr. Trump’s election fraud lies did not invoke any foreign adversary.

In claiming immunity for everything he did on the basis of those lies, Mr. Trump and his lawyers have not relied on the notion that presidents have special constitutional authority for national security. Rather, they have argued that no official presidential action may be treated as a crime unless two-thirds of the Senate has first voted to convict a president for that action in an impeachment proceeding.

Much about their claims is disputed, including whether some or all of the events described in the special counsel’s indictment should be seen as official actions Mr. Trump took as president rather than unofficial actions he took as a candidate for office. Rulings by the trial judge and a federal appeals court rejecting Mr. Trump’s immunity claim took the position that it did not matter in which category the actions fell, because former presidents have no special immunity at all.

But the Supreme Court has indicated a willingness to entertain the idea. When it accepted the case, it said it would decide “whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

Mr. Trump is making his bid to free the presidency from criminal law as he and his advisers, in planning for the prospect of a second term, have laid the groundwork to increase the president’s personal power over the federal government. Those plans, as examined by a recent series in The New York Times, include eliminating pockets of decision-making authority that are independent from White House political interference.

One of the constraints Mr. Trump would eliminate, which took root as a norm after Watergate, is that the Justice Department makes investigative and prosecutorial decisions by itself. During his first term, Mr. Trump pressured the department to go after prominent Democrats and national security officials from the Obama administration, but those investigations did not yield criminal charges. In a second term, Mr. Trump has vowed that he would use the Justice Department to have his adversaries investigated and charged with crimes, fully ending that norm.

Mr. Trump and his allies have also developed plans to increase presidential power over federal agencies, pushing a maximalist version of the so-called unitary executive theory. It says the president can directly command the entire federal work force and it is unconstitutional for Congress to create independent regulatory agencies run by commissioners whom presidents cannot arbitrarily fire.

In a video on his campaign website, Mr. Trump has vowed to bring the independent agencies “under presidential authority, as the Constitution demands.”

In another callback to the Nixon era, Mr. Trump has declared he will try to revive the practice of “impounding” funds, refusing to spend money Congress has appropriated for programs or purposes a president does not like. Lawmakers banned it under Nixon, but on his campaign website, Mr. Trump declared that presidents have a constitutional right to impound funds.

Mr. Trump has also declared he would reissue an executive order he put forth at the end of his presidency — which Mr. Biden swiftly rescinded — that would undermine civil-service rules that protect career government officials. The change, known as Schedule F, would allow his administration to fire tens of thousands of federal workers if it saw them as obstacles to his agenda and replace them with loyalists.

Mr. Trump’s allies are also vetting lists of potential officials in a second term, seeking a cohort that would be less likely to try to restrain what he wants to do than his political appointees sometimes were in his first term. That effort includes systematically selecting a different type of government lawyer to act as a legal gatekeeper, one who will be less likely to object to what he and his White House aides dictate.

If Mr. Trump does win a second term and enacts these plans, the policies will inevitably lead to legal challenges in the courts that will arrive before the same Supreme Court that is now deciding Mr. Trump’s broad claim to be immune from criminal prosecution over arguably official actions.

The court has never had an opportunity to decide that issue before because no former president has been charged with crimes until Mr. Trump. Nixon accepted a sweeping pardon from his successor, President Gerald Ford, that foreclosed the possibility of being prosecuted over his abuses of power in Watergate.

In 1982, however, the Supreme Court ruled that Nixon, as a former president, was immune from civil lawsuits over his official actions as president. In asking the Supreme Court to expand that principle to criminal law, Mr. Trump has invoked a similar logic — that presidents must be immune from later criminal prosecution for their official actions, lest fear of future charges paralyze them from performing constitutional duties.

The result would be a significant change to the shape of American-style democracy, regardless of whether Mr. Trump wins the election in November and has an opportunity to put in motion his other plans for executive power.

Rather than a presidency at least theoretically checked by law, the country would be ruled by presidents who could openly commit official crimes with impunity, so long as enough allied lawmakers remained sufficiently loyal to block any impeachment.