Former WA Attorney General: Trump claim of total authority as president is ‘false’

They’re being called a blueprint for dictatorship. Presidential emergency action documents are mysterious documents that are apparently sealed in a vault and give extraordinary powers to whoever the president happens to be, including suspending the Constitution. Former state Attorney General Rob McKenna joined Seattle’s Morning News to explain what exactly they are.

“I’m not that surprised to read that these documents exist because I think a lot of us have been aware that the executive branch — the White House in particular — does a lot of contingency planning … These PEADs, as they’re called, date back to the Eisenhower administration when they were trying to plan for a potential Soviet nuclear attack,” he said.

“So it’s contingency planning, and this idea of exercising presidential authority in extraordinary ways, like suspending habeas corpus, all of that flows from a presumption that you’re in a state of national emergency.”

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McKenna says that Trump’s recent comments regarding presidential authority has led some to worry, but there are proper check and balances to ensure the use of power is warranted.

“What’s made it I think even more alarming though for a lot of people — it would have been, anyway — is that you’ve got President Trump running around saying that ‘When somebody is the President of the United States, the authority is total, and that’s the way it’s got to be.’ Well, that’s false,” he said.

“What’s true is that in an emergency, the president does have more authority, just like Governor Inslee has more authority during the health emergency that we’re experiencing right now. But you have to keep in mind, it’s in that context of a declared emergency, and there are lots of checks and balances,” he said.

Such checks and balances require the use of power to be warranted under an emergency. McKenna detailed examples in which Trump could not get that authority.

“I’ll give you two examples: President Trump tried to declare an emergency and shift money that Congress had not appropriated from the defense budget to build his border wall right on. That was struck down in court. And Trump tried to ban Muslims from entering our country for a period of time. That initial order was struck down. It was heavily modified and subsequently upheld. But the judiciary weighted in, did its job, and that improper use of emergency authority was curtailed and reversed by the court.”

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While McKenna understands the concerns, he says the documents have been around for awhile and we’ve successfully maintained our freedoms.

“I’m not saying there isn’t some cause for concern and there isn’t a need for additional transparency here. But we’ve had these presidential emergency action documents since the 1950s, and we haven’t lost our freedoms. Administrations from Eisenhower through Obama have not seemed to relish the idea of alarming people, because these action documents evidently are based on really scary scenarios like what would happen in case of a nuclear attack,” he said.

“The idea of giving the president more power during an actual emergency is really rooted in the Constitution and in the framers’ recognition that they designed the legislative process to be slow and cumbersome. It’s often said that the Constitution is not a suicide pact. And so, if in a true national emergency, it’s important to suspend certain basic rights to avoid national suicide, I think we would all agree that’s probably the right outcome.”

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