What Someone Needs to Explain to Trump About ‘National Emergencies’

When the recently arrived White House counsel Pat Cipollone took up his post, he could have had no illusions that the president he served would make his professional life easy. Just weeks into the job, he has been asked to provide legal support for the president’s declaration of a national emergency on the U.S.-Mexico border that would enable him to divert funds to the payment of “a wall.”

We don’t yet know whether President Donald Trump is committed to this course. He omitted any mention of an emergency declaration from his Oval Office address on the border “crisis” on Tuesday. Then, after an unsuccessful meeting with the Democratic leadership to resolve the wall and government-shutdown issues, the president returned to the possibility of assuming emergency powers, declaring that they were available to him as his “absolute right.” On Thursday morning, Trump put the odds of his taking this action at “maybe definitely.” He told reporters that his lawyers were “100 percent” behind his exercise of this “absolute right.”

It is possible but exceedingly unlikely that Cipollone is that optimistic about the president’s chances of prevailing on this issue or so eager to please that he would give this or any other controversial legal position that Trump favors a “100 percent” seal of approval. A White House counsel must develop his recommendations from the particular perspective as an institutional lawyer—as counsel to the president and not personal consigliere to Donald Trump. He certainly must take the president’s policy imperatives very much to heart. He will not want to give the president a “no” if there is a plausible “yes” he can offer. But his institutional responsibilities would shape his analysis and identification of the available legal options. The counsel might start with what the president wants. But his goal cannot be to just end there.

[Adam Serwer: Trump the toddler]

This institutional perspective would compel a counsel in a matter such as this to separate the critical questions into two