In June, proto-Trump, Newt Gingrich made the exact, same argument, and I posted this. I explained the obscure theory of the "unitary executive," referenced Nixon/Frost, Judge Dredd... the whole deal. Go ahead and read it. It is all still relevant, and there is no need for me to re-type it.
Now, though, Trump's lawyer is making the argument explicitly. Why, and what does that mean?
As a matter of legal strategy, when you walk into a courtroom, you make all of your best legal arguments. If this were a courtroom, and this were all Dowd had, it would mean that Trump basically admitted guilt (and hey! he did! on national tv!), because this is a bunch of fuckin' bullshit. Nobody takes the "unitary executive" argument this seriously as a matter of general principle. Sure, Newt, Trump and people like that will make the argument when convenient for their own sides, but that's just Miles's law in action. If this is all you have, you have nothing.
Remember, though, that Dowd isn't making this argument in a courtroom. This is the point at which you, the reader, say, "ah! But he is making the argument in the 'courtroom of public opinion!'" Ain't no such thing. Metaphors are bullshit.
Remember that a sitting president cannot be charged with a crime. First, a president would have to be removed from office by impeachment. In order for that to happen, the GOP-- or at least a large chunk of it, given the 2/3 supermajority requirement for conviction in the Senate-- would have to agree to remove Trump. They really, really, really don't want to do that. No matter what Trump has done or ever will do. The GOP will never, under any circumstances, turn on him. Period.
All they need is an excuse to keep backing him. It doesn't matter how stupid, flimsy, transparent or hypocritical it is. The GOP spent eight years of the Obama administration decrying "the imperial presidency" every time Obama issued an executive order. Where's the outrage whenever Trump issues one? Oh, right.
Is anyone seeing the outrage from the right about this unitary executive bullshit?
No?
That's because the foremost advocate of the "unitary executive" theory is... John Yoo, a Berkeley law professor who was George W. Bush's go-to guy when he needed someone to tell him that even though every law on the books banned torture, torture was really, secretly legal because the president is actually above all laws. Nobody on the right batted an eyelash about that. They loved unitary executive theory then. Why? Miles's law.
Enter Obama. Suddenly, every executive order is tyranny and the "imperial presidency."
Now, Trump is President. Unitary executive is cool again, as far as the GOP is concerned. So, Trump is above the law. Dowd isn't taking this shit into a courtroom because it will never see a courtroom. In order to get that far, Trump would have to be impeached, and that won't happen.
Why not? Because there is a Republican in the White House, a Republican majority in the House and Senate, and those Republicans in Congress will once again decide that the theory of the "unitary executive" is exactly what the framers intended.
And the next time a Democrat takes the oath of office (assuming we get that far...), they'll decide that it's unconstitutional for a president to sneeze, because Saint Ronnie never sullied the office by sneezing, and that fact traveled back in time to the framers, and made them intend to write the Constitution in such a way as to make "sneezing as president" an impeachable offense.
