The President’s mendacious nightly press briefings on the coronavirus will go down in history for their monumental flimflammery.
During the Vietnam War, the United States had the Five O’Clock Follies, nightly briefings at which American military leaders claimed, citing a variety of bogus statistics, half-truths, and misleading reports from the front, to be winning a war that they were, in fact, losing. Richard Pyle, the Associated Press’s Saigon bureau chief, called the press conferences “the longest-playing tragicomedy in Southeast Asia’s theater of the absurd,” which, minus the “Southeast Asia” part, is not a bad description of the scene currently playing out each evening in the James S. Brady Press Briefing Room, in the White House. We now have the Trump Follies, the nightly briefings at which President Trump has lied and bragged, lamented and equivocated, about the global pandemic that poses an existential threat to his Presidency. Just as the Vietnam briefings became a standard by which the erosion of government credibility could be measured then, historians of the future will consult the record of Trump’s mendacious, misleading press conferences as an example of a tragic failure of leadership at such a critical moment. There will be much material for them; the transcripts from just the first three days of this week runs to more than forty thousand words.
Since Trump began making the press conferences a daily ritual a couple of weeks ago—an eternity in the pandemic era—his more memorable lines are already featuring in political attacks against him. “I don’t take responsibility at all,” Trump insisted, two weeks ago. When asked to assess his own performance, he said, “I’d rate it a ten.” This Wednesday, with members of his coronavirus task force joining him onstage, he added, “We’ve done one hell of a job. Nobody has done the job that we’ve done. And it’s lucky that you have this group here right now for this problem or you wouldn’t even have a country left.”
The disconnect between Trumpian reality and actual reality has never been on starker display than in the past few days, as the true face of the horror we are facing in the United States has shown itself, in New York City, with overwhelmed morgues and emergency rooms, a governor pleading for ventilators and face masks from the federal government, and heartbreaking first-person accounts reminiscent of the open letters sent from Italy a few weeks back, which warned Americans: this is what is coming for you—don’t make our mistakes. On Tuesday, the World Health Organization said that the United States was emerging as the “epicenter” of the global pandemic, which makes the James S. Brady Press Briefing Room the emerging epicenter of the failure to respond to it.
A couple of weeks ago, it seemed as if maybe that would not be the case. Although the Trump Administration had faltered and delayed and denied through the initial stages of the virus, when it raged outside our borders, it looked like it might finally get its act together and take this public-health menace seriously, now that it was hitting in force inside the U.S. Trump declared a “national emergency,” stepped up testing, and, on March 16th, agreed to his crisis committee’s plan for a fifteen-day countrywide slowdown, in order to “flatten the curve” of the disease’s trajectory. Barely a week into the fifteen days, however, Trump began signalling an abrupt change of course—at just the moment when the disease was accelerating its deadly progress through a wealthy nation that turned out to be surprisingly ill-prepared for it.
Throughout this long, strange March, Trump has often framed the fight against the pandemic in martial terms: a “battle” to be won, a victory to be achieved, a shared sacrifice against “this invisible enemy” which would go on “until we have defeated the virus.” But the Commander-in-Chief did something extraordinary this week: he rebelled against his own clichés, essentially declaring that he no longer wanted to be at war with the virus after all.
On Sunday, he prefigured this pivot, apparently after watching the Fox News host Steve Hilton complain about the treatment—a shut-down country and a cratered economy—being worse than the disease. “WE CANNOT LET THE CURE BE WORSE THAN THE PROBLEM ITSELF,” Trump tweeted, shortly before midnight. By the Monday-night edition of the Follies, which are usually scheduled for 5 p.m. but often not started until later, Trump was repeating this line over and over again. “We cannot let the cure be worse than the problem itself,” he said. “We’re not going to let the cure be worse than the problem.” Later, he added, “We can’t have the cure be worse than the problem,” and also, “We can’t let that happen. . . . We can’t let this continue to go on.” America, he said, would be “open for business” soon.
On Tuesday, which marked a month since a now-infamous tweet in which the President claimed that “the Coronavirus is very much under control in the USA,” Trump was even more specific. He announced that afternoon, on a Fox News special from the White House lawn, that he wanted to get the country reopened and the church pews “packed” by Easter, on April 12th, at just the time when New York and other states were predicted to face the maximum pressure on their overstretched medical facilities. A few hours later, at the nightly press briefing, he was asked about this seemingly arbitrary timetable by CNN’s Kaitlan Collins.
“Who suggested Easter?” Collins asked. “Who suggested that day?” Trump replied, “I just thought it was a beautiful time. It would be a beautiful time, a beautiful timeline. It’s a great day.” Collins followed up: “So that wasn’t based on any of the data?” “I just think it would be a beautiful timeline,” Trump responded.
This was painfully revealing: the President, under questioning by an independent reporter, was admitting that he wanted to do something with no basis in science. In fact, within minutes, some of the nation’s leading experts on pandemics panned the suggestion as dangerous and ill conceived. By Wednesday, Trump was still talking about an Easter deadline, but only promising a new “recommendation” at that time. “I’m not going to do anything rash or hastily,” he said, which is as close to a reassuring statement from the President as he will ever offer.
On Thursday, Trump appeared before the cameras just before 5:30 p.m., minutes after the Times reported that the United States now had more than eighty-one thousand recorded cases of the coronavirus, surpassing China as the world’s No. 1 country in terms of confirmed infections. When asked about the statistic, Trump acted as though this, too, was some sort of an achievement of his to be praised, saying that the high number was “a tribute to our testing.” Despite the day’s grim news, with his Administration reporting a record-high week of unemployment claims, Trump continued his upbeat tone. The world “is going to end up better than ever,” he said, before reading out all the names of the members of the G-20 world leaders with whom he had spoken that morning, listing the provisions of the two-trillion-dollar emergency-aid package that Congress is finalizing, and even reciting the number of gloves that the Federal Emergency Management Agency has sent to individual states. Eventually, he got around to his main point, which is that “we’ve gotta go back to work.” Earlier on Thursday, his Administration had sent a letter to governors, saying it would soon issue new guidelines rating U.S. counties by their varied levels of risk for the disease and suggesting that those with lower risk could resume business more quickly. Trump offered no specifics, but touted it as a needed step. “I think it’s going to happen pretty quickly,” he said. He never mentioned the word “Easter.”
After all that, it was hard not to think of Trump’s whole “beautiful timeline” as yet another monumental act of Presidential flimflammery, a distracting week of misdirection to keep us all occupied while those of us who are still working do so from home. Trump’s open-by-Easter pledge may well be as quickly forgotten as his other lies during the coronavirus crisis thus far, such as when he said that the cases would go down to near zero in a few days, that the disease would simply disappear, and that it would never make it to our shores in significant numbers.
These daily Presidential briefings have understandably become controversial among the national media, which is wary of being played by an attention-seeking President. Neither the Times nor the Washington Post are sending reporters to them, citing the health risk. (A journalist who had attended several of the sessions has reportedly contracted the virus; even still, the President refuses to follow the social-distancing dictates that his government is urging others to practice.) Sources at various television networks have said that the networks were considering no longer airing them, although they have so far continued to do so. The Post columnist Margaret Sullivan has argued that the briefings should not be broadcast live anymore, citing the fact that the President was using them as a platform for “self-aggrandizement,” “media-bashing,” and “exaggeration and outright lies.”
Trump will keep doing them, however, because they work. According to the Times, ratings for Trump’s briefings rival those for “hit reality shows and prime-time football.” Trump, whose star turn on NBC’s “The Apprentice” arguably had as much to do with his election to the Presidency as anything else, is obsessed with ratings. His other metrics are good, too, including a Gallup poll showing him with the highest approval rating of his Presidency (forty-nine per cent, versus a forty-five per cent disapproval rating). Even more striking were the results of a CBS/YouGov poll, released this week, in which respondents were asked what sources of information about the coronavirus they found most credible. Democrats rated medical professionals and the Centers for Disease Control and Prevention most highly. Trump came in last among this group, at fourteen per cent. But, for Republicans, Trump came in at the top, with ninety per cent saying that they trusted the President’s information about the coronavirus, making him tied for first place with medical professionals. The poll shows that, even when their own lives are literally at stake, a significant subset of the American population no longer believes in almost anything other than the President.
This, in the end, is why Trump’s nightly Follies matter. Even if he cannot reopen the country by Easter, and governors and mayors ignore him, as they surely will. Even if what he says is so contradictory and at times patently false that his own followers could not possibly heed his advice as a practical guide to action.
In the long course of the Vietnam War, which lasted a full decade, some fifty-eight thousand Americans died. With the pandemic, many scientific models publicized in recent days have projected that U.S. deaths could reach far beyond that figure by the time the coronavirus has run its course, depending at least in part on what decisions Trump and other leaders take in the coming months. But this week’s Follies have shown an irresolute leader who does not want to fight the war or even, on many days, admit that it exists. He is a cartoon caricature of a wartime President, not a real one.
A Vietnam draft-dodger, who used a phony foot problem to get out of that war, Trump this week has reminded us that he would like to be a coronavirus draft-dodger, too. But the fight is not a hoax, no matter how often he suggests it is, and the President, like it or not, is already in the fight. On Tuesday, he told the country that he would soon be reopening it, “as we near the end of our historic battle with the invisible enemy.” By the time you read this, though, the battle will not be over, or even really begun. As soon as Trump finished speaking on Thursday, CNN interrupted the briefing to broadcast the news that it had been the deadliest day yet in the pandemic for the United States, with at least two hundred and thirty-seven dead, and hours more to go.
Over his nearly three years in office, lawyers representing President Trump have made numerous legal arguments that, taken as a whole, would give the president sweeping immunity—even if he were to commit murder.
An extensive review of correspondence, court documents, legal opinions and public statements from lawyers representing Mr. Trump shows the president’s attorneys have consistently pushed to put him beyond the reach of any other institution in federal, state or local government—immune to civil lawsuits, judicial orders, criminal investigations or congressional probes.
One lawyer for the president recently went so far as to suggest that Mr. Trump could shoot someone on Manhattan’s Fifth Avenue and not be investigated by local authorities, echoing a statement the president made during his 2016 campaign in which he said he wouldn’t lose any voters over such an action.
“This administration has articulated a view of presidential power in which the president is above the law,” said Erica Newland, who served in the Justice Department Office of Legal Counsel during both the Obama and Trump administrations.
PRESIDENTIAL POWER
Some positions that lawyers representing Mr. Trump, the White House or the Department of Justice have argued since January 2017 in court or in other legal documents:
Mr. Trump is immune from criminal investigation while he remains in office, even if he were to shoot someone on the streets of Manhattan.
“If he can’t be held accountable via executive-branch law enforcement and he can’t be held accountable via congressional impeachment, then we really do have a king,” said Ms. Newland, now counsel at the bipartisan legal advocacy group Protect Democracy.
Lawyers representing the president either in his personal or institutional capacity have argued that
law enforcement can’t investigate the president at all; that
he can shut down investigations into himself or his associates; and that
obstruction-of-justice laws don’t apply to the president.
At the same time, since Democrats took over Congress in January, Mr. Trump’s government and personal lawyers have fought numerous legal battles over congressional oversight—arguing that close aides don’t have to testify even if subpoenaed, that all congressional investigations must serve a “legislative purpose,” that cabinet secretaries can disobey subpoenas and that a congressional impeachment inquiry is invalid.
Further, they have argued that federal courts don’t have the authority to transmit any evidence of presidential wrongdoing obtained by a grand jury to Congress for possible consideration of impeachment. In some instances, Trump administration attorneys have contended that some executive decisions are unreviewable by the courts, or that courts have no right to issue orders stopping the president from taking official actions.
Some of the claims contradict each other: Mr. Trump’s personal attorneys have argued he can be held accountable only by Congress, while his White House lawyers fought efforts to hold him accountable in Congress.
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The White House, the Justice Department and an attorney representing Mr. Trump personally didn’t respond to multiple requests for comment.
To some extent, these positions reflect what all lawyers do: take aggressive, maximalist legal positions in the best interests of the client, and see if a court agrees. Lawyers for previous presidents—Democrats and Republicans—are no strangers to making similarly aggressive claims about powers, authority and immunities to defend the president personally or the long-term power and authority of the office.
But scholars who study the history of presidential power say what is different about the Trump administration is its unwillingness to acknowledge the legitimacy and interests of other institutions.
“Mr. Trump has taken the position that the [Constitution’s] Article II powers of the president give him absolute authority. What makes his case different is that he is not even recognizing the legitimacy of countervailing powers” such as Congress, said Mark Rozell, a dean at George Mason University who has studied presidential authority. “He is deeming them as politically motivated and not legitimate in their inquiries and therefore to be obstructed at every turn.”
Executive Privilege: What Are the Limits?
Executive privilege refers to the president’s right to keep certain things confidential. But how far can it be stretched? WSJ’s Shelby Holliday looks at past uses of executive privilege and explains how it could factor into the impeachment inquiry. Photo: Getty
The issue gets even more complicated in investigations like impeachment because overlapping legal teams are defending the president in both his capacity as an individual and his capacity as the president.
Government lawyers represent the presidency as an institution and are supposed to advance arguments to preserve the institutional powers of the president—but aren’t supposed to defend the president’s personal interests.
The Justice Department, the White House counsel and his personal legal team are all defending the president on a cornucopia of different lawsuits around the country.
John Yoo, a former Bush administration official known for his advocacy of expansive presidential power, said many of the most extreme legal positions taken by the Trump lawyers have come from his personal attorneystrying to defend him by invoking the powers of the presidency. He said that most of the positions the Justice Department, White House counsel and other government lawyers have taken are in line with previous practices.
“When it comes to where he’s making the arguments on behalf of the office of the presidency, in his official capacity, I think he’s gone just as far as other presidents have,” Mr. Yoo said. “In the areas where the president has been defending himself as an individual rather than the office, he has made arguments that have gone beyond what past presidents have set out.”
Mr. Yoo added: “I think that Trump has been under unprecedented assault—constitutionally, legally—from his critics too. I can see why his lawyers are bringing out these arguments which are usually reserved for times of real crisis.”
Mr. Trump isn’t the first to provoke a legal showdown over his powers and immunities. But rarely did the attorneys representing other presidents deny that other institutions also had legitimate interests.
Richard Nixon sparked a major legal battle over his refusal to turn over tapes of Oval Office conversations to prosecutors and Congress. But he also offered numerous compromises, such as turning over transcripts, because he and his attorneys recognized that Congress and prosecutors had legitimate interests in access to the materials as part of their inquiries.
During a yearslong independent counsel investigation and later impeachment, President Bill Clinton also fought numerous legal battles over his privileges and immunities, but frequently argued before courts that they needed to balance the interests of the presidency against the needs of Congress or law enforcement. Mr. Clinton, for instance, agreed to testify before a grand jury in exchange for independent prosecutor Ken Starr dropping a subpoena.
President George W. Bush fought back against a Democratic-led congressional investigation to keep his top aides from testifying about the firing of federal prosecutors for what critics said were political reasons, but offered a compromise by allowing voluntary interviews and turning over documents to Congress.
Few of those legal positions have ever been blessed by courts.
Last week, Mr. Trump’s personal attorney William Consovoy argued before a New York federal appeals court in the tax case that Mr. Trump couldn’t be investigated for any crime while in office. The judge asked if that included shooting someone on Fifth Avenue. “Nothing could be done?” he asked.
“That’s correct,” Mr. Consovoy said. That case is pending.
In another instance earlier this month, Justice Department lawyers argued that a court couldn’t give Congress evidence that was gathered by special counsel Robert Mueller if it was obtained using a grand jury—going so far as to say that a federal judge was wrong in 1974 to give Congress materials from the grand jury investigating the Watergate break-in.
“Wow, OK,” U.S. District Judge Beryl A. Howell said in response to that argument. “The department is taking extraordinary positions in this case.”
She ruled against the Justice Department last week, writing that her decision was motivated in part by the White House’s refusal to cooperate with congressional investigators.
Executive Privilege: What Are the Limits?