Opinion | How Much Can Trump 2.0 Get Away With?

“I am your warrior, I am your justice,” Donald Trump told the crowd at the Conservative Political Action Conference in National Harbor, Md. on March 4. “And for those who have been wronged and betrayed, I am your retribution.”

How much power would Trump have in a second term to enact his agenda of revenge?

I asked Laurence H. Tribe, a professor of constitutional law at Harvard, how free Trump would be to pursue his draconian plan.

Tribe replied by email:

There is little doubt that Donald Trump could impose authoritarian policies that endanger dissent, erase the requirements that ensure at least a modicum of the consent of the governed, and are downright dictatorial while acting entirely within the literal scope of the law although, needless to say, in flagrant defiance of its spirit. Neither the Constitution’s text nor the language of the federal statutes and regulations in force create guardrails that Trump would need to crash through in a way that courts hewing to the text would feel an obligation to prevent or to redress.

Congress and the courts have granted the president powers that, in Trump’s hands, could fundamentally weaken rights and freedoms most Americans believe are secure and guaranteed under law.

Tribe continued:

Many of the statutes Congress has enacted, especially in the post-World War II era, delegate to any sitting president such extraordinary powers to declare “national emergencies” when, in their own unreviewable judgment, the “national interest” or the ‘national security’ warrants, and give presidential declarations of that kind the power to trigger such sweeping executive authorities that a president could comfortably indulge authoritarian aspirations of demoting or detaining all those who stand in their way or of seizing property or otherwise restricting personal liberty and the rights of private citizens and organizations without raising a legal eyebrow.

Jack Balkin, a professor at Yale Law School, argued that the same lack of restraint applies if a president wants to initiate criminal investigations of his or her opponents and critics. In an email replying to my queries, Balkin wrote:

A president giving orders to an obedient Justice Department can exact revenge on political enemies and chill political opposition. It is not even necessary to send anyone to prison. For many people and organizations, the costs of defending a criminal investigation and prosecution can be ruinous and a sufficient deterrent. Moreover, if the public merely believed that the president was using the intelligence services and the I.R.S. to investigate political opponents, this could also chill opposition.

Balkin noted that after Watergate, “the Justice Department adopted internal guidelines to prevent presidents from abusing the prosecution power, but the president, as head of the executive branch, can direct his subordinates to alter these guidelines.”