OCEAN CITY — Leadership for the administrative law section of the Maryland State Bar Association were unsure whether a session on executive power would remain relevant when they planned it months ago, but law professors Michael I. Meyerson and Mark Graber had no trouble speaking about issues that were in court as recently as this week during a program at the MSBA Legal Summit and Annual Meeting Thursday morning.
The program, called “Executive Power: Emoluments, Pardons, Special Counsel, and Tweets,” allowed Meyerson, from the University of Baltimore School of Law, and Graber, from the University of Maryland Francis King Carey School of Law, to discuss emerging issues and answer questions from attorneys in attendance.
Meyerson called President Donald Trump “an unprecedented president.” Graber pointed out that Trump is abnormal in the United States but “increasingly normal, globally, and that’s disturbing.”
Meyerson said Trump is generating either new legal questions or legal questions that have been posed in the past but not answered.
Citing the recent U.S. District Court decision that Trump’s Twitter feed is a designated public forum that he cannot censor or block people from, Meyerson said there is an interesting issue about what is Trump’s private speech and what is presidential speech.
Trump tweeted that NFL players who kneel during the national anthem should be fired, and the NFL owners have since adopted rules restricting such protests. Does that make them state actors working in conjunction with Trump to censor political speech?
“I don’t know the answer to that,” Meyerson said.
He also looked at the language of the Constitution and debates from the Founding Fathers to answer the questions of whether Trump can pardon himself and if any of his business dealings violate the emoluments clause.
The pardon power is broad, but historical discussions indicate a self-interested pardon by the president for the president was not contemplated. Pardons were acts of mercy and generosity rather than self-dealing, Meyerson said.
Delegates at the Constitutional Convention said the emoluments provisions were necessary to preserve independence of foreign ministers and avoid foreign influence of any sort. At their core, the clauses aim to prevent plausible or perceived corruption, so what is right and what is wrong should be fairly obvious.
“If we’re going to be consistent with what this country was founded on, we’re going to end up with the oldest answers,” he said.
Graber said that because Trump is not a unique problem, getting rid of him does not address the global trend that put him in power.
He advocated for a pluralistic approach that would acknowledge the tensions between different people with different values.
“It requires the adults in the room to act like adults,” he said.