Jurisprudence

Just About the Last Person to Trust With Additional Power Now Has a Lot More

Trump listening and a blurry image of Mike Pompeo speaking at a Coronavirus press conference.
Who wouldn’t trust these guys.
Alex Wong/Getty Images

The national security implications of the coronavirus response are almost beyond the scope of any one inquiry. President Donald Trump is already using emergency powers to enact an agenda he has sought for a long time. There is talk of expanding the government’s use of the Defense Production Act. People are worried about civil liberties and about the November elections. As has broadly been the case throughout the Trump era, we are flying blind in many cases, without laws or norms to guide us. Georgetown Law professor Joshua Geltzer served as senior director for counterterrorism at the National Security Council in the Obama administration and, prior to that, as deputy legal adviser to the NSC and counsel to the assistant attorney general for national security. I asked him to help me think through questions about rule of law, the future of free and fair elections, and other national security questions I had been too freaked out about to ask. This conversation has been edited for length and clarity.

Dahlia Lithwick: I wanted to start with the elections. Because I keep thinking that we may be missing the big picture. I am hugely in favor of vote by mail and expanded absentee balloting as Rick Hasen and Dale Ho suggest. But I am concerned that even with such measures there are a million other ways to disrupt or corrupt the presidential election. And that we aren’t even thinking of them yet. Do you have any thoughts about what would constitute a legitimate election, mid-pandemic, and what measures you would use to determine that it had been free and fair?

Josh Geltzer: At a fundamental level, a “legitimate election” might be one in which the technical requirements of the Constitution and implementing statutes are adhered to. In other words, if some number of ballots are cast in some manner (such as, say, by mail) that’s lawfully permitted; if those ballots are then counted in each state as the law dictates; if the Electoral College and ultimately Congress play their anointed roles—all of that might add up to an election that’s lawful in mid-pandemic circumstances, and thus “legitimate.” I wonder if the question of what’s “free and fair” might be a different question: If, to take an extreme example, only 1 percent of Americans vote, would the result of that vote be “free and fair?” What if that 1 percent are overwhelmingly those who are able to print a mail-in ballot while at home during social distancing because they own printers—doesn’t that start to look pretty unfair? So, there could be answers about fairness that are different from answers about legitimacy. And the two could be related. At some point, the unfairness could violate constitutional standards and, in turn, yield illegitimacy.

Bottom line: it ain’t easy, Dahlia. But democracy ain’t easy; and this pandemic ain’t easy, either.

How does this connect to the issue of emergency powers and the president. I know you have given a lot of thought to that question, even before mass lockdowns, and I wonder where you see the issue of broad “wartime” powers and the upcoming elections intersecting in ways we haven’t yet considered?

Before coronavirus, many of us were concerned about and critical of Trump’s invocation of emergency authorities. Now, many of us are concerned about and critical of Trump’s failure to invoke emergency authorities. I don’t think that’s actually inconsistent: before, Trump was invoking emergency authorities for fake emergencies, such as at the southwest border; now, he’s refusing to invoke fully emergency authorities like the Defense Production Act to mobilize the private sector to make sorely needed medical equipment in the face of a real emergency. It’s bad to invoke emergency authorities when no emergency exists; it might be even worse to refuse to invoke such authorities when a genuine emergency does exist.

That said, he’s still Donald Trump; he’s still a serial abuser of executive authority; and he’s still just about the last guy I’d trust with additional power. So, even as many of us urge Trump to invoke authorities that can help us address a grave national emergency, I think we need more discussion—quickly—about how we constrain his reliance on those authorities. That can include articulating where we think the authorities’ boundaries are; time-limiting their use; and ensuring there’s oversight of their implementation, so they’re not abused.

On the specific notion of “wartime” powers, it’s important to remember that elections happened in this country even during the Civil War, perhaps the most extraordinary of emergencies to afflict this nation. It’s simply textbook law that only Congress can change the dates of the presidential election cycle; and it’s not at all clear, at this point, that doing so is necessary or prudent. What’s more, there’s something perverse here: Donald Trump of course didn’t create this virus, but his abysmal response has made its outbreak in the United States much worse. For him to turn around and invoke additional authorities because of an emergency situation Trump himself has aggravated seems pretty perverse.

I’ll ask you the same question I asked Michele Goodwin: How do we calibrate the need for a strong, effective, centralized, and civil-liberties encroaching public health response to the virus, against the sense that this is an executive branch that has shown dramatically little interest in civil liberties and the rule of law even in peacetime? What’s the best way to balance the two imperatives?

My basic answer is to try to look past this crisis, even as all-consuming as it is right now, and thus to ensure that the authorities appropriate to deal with it don’t overstay their welcome. It’s easy for authorities newly enjoyed by the executive branch to become “sticky,” so to speak: to remain in the toolbox of presidents, to get expanded over time by executive branch lawyers, and to be acquiesced in (if resented) by Congress, as well as the courts. But we don’t want the executive branch—and many of us especially don’t want a Trump-led executive branch—to get comfortable with authorities that may well be appropriate here and now for dealing with a truly life-and-death situation but should end there. So, Congress should be using tools like sunset clauses, reporting requirements, and other forms of constraint and oversight to try to confine to the current circumstances exercises of power we may need now but regret if they persist later.

I guess part of what worries me is that in uncertain times, it’s tremendously hard to know what national security and democracy-protective steps will be taken that make us genuinely less free, and what seems like inchoate fear and panic. Do you have some imaginary line in your head—a place in which you would know when constitutional democracy itself is imperiled?

I have a bunch of lines, and I worry there’s already chalk on Trump’s cleats as he plays up to and even over them. They’re not all about legal authorities; they’re also about norms. For example, one line that I regard as sacrosanct is the line between public interest and private gain. Trump seems more inclined to the latter than the former: for weeks, he seemed to think he could boost his private reelection chances by denying the growing threat posed by coronavirus, even if that denial endangered public safety—as it surely did. Another example is the line between fact and fiction: and, again, I fear Trump is spreading at least as much fiction as fact about this virus, and probably more. To claim, as Trump has, that the outbreak is under control or fully handled isn’t just “spinning” the situation; it’s outright lying about a public health crisis. And that, to my mind, is a threat to constitutional democracy—to a governmental order that’s premised on a public able to be informed and responsive to truth, not lies.

What am I missing?

You need more to worry about? Okay, Dahlia, here’s one more thing. Trump is, before our eyes, re-branding himself a “wartime president.” That’s his way of turning an absolute mess partly of his own making into an electoral opportunity. We can’t let that happen. It’s true that this virus is of a severity that demands a wartime response from the American people in our seriousness and sacrifice. But that doesn’t make Trump, who exacerbated this mess, worthy of being treated as a wartime president, whatever that means exactly. Bungling a response so badly that it takes a wartime toll on the American people doesn’t earn a president the honor of being treated as a wartime president rallying the country against an outside adversary. And of course Trump’s attempt to call this a “foreign virus” is patently absurd—as if viruses knew national borders!

So what happens now?

For now, we appreciate those who’ve stepped up while our federal government hasn’t: mayors, governors, even the private sector. And we appreciate each other: our family, friends, and neighbors. We’re truly all in this together. As depressed as I am by the response of the American president, I’m heartened by the response of the American people. I hope everyone who reads this stays healthy, safe, and kind. Thanks for doing this, Dahlia.