President Donald Trump and his MAGA allies continue to advance the "unitary executive theory," a far-right legal doctrine holding that the U.S. Constitution grants presidents maximum executive power. Harvard University legal scholar Noah Feldman, writing in an opinion column for Bloomberg News, counters that the "maximalist view" of presidential power held by Trump and MAGA is not only legally wrong — it is also, in his assessment, a recipe for major corruption.

In practice, the theory rests on Article II of the Constitution, which proponents read as vesting all federal executive power in the president alone — an interpretation with direct stakes for fights over firing federal officials, directing executive branch agencies, and withholding information from Congress.

Feldman acknowledges that presidents enjoy a certain amount of "executive privilege" under the U.S. Constitution, but he argues it is nowhere near as vast as MAGA Republicans claim. Its legal purpose, he writes, is to protect communications that occur within the government, between the president and other public officials — not confidential dealings with private advisers outside of government.

Executive privilege is not spelled out anywhere in the Constitution; courts have treated it as a doctrine implied by the separation of powers. The Supreme Court squarely addressed its limits in United States v. Nixon, its unanimous 1974 ruling ordering President Richard Nixon to surrender the subpoenaed Watergate tapes — a decision that recognized a qualified privilege for presidential communications while rejecting any absolute right to withhold them.

"The Trump administration's latest assertions about executive privilege — that it protects the confidentiality of a president's communication with private advisers who aren't part of the government — are like too much else in this White House: politically unprecedented, legally wrong and morally dubious," Feldman writes in his Bloomberg column. "From a legal standpoint, the point of executive privilege is to protect communications that occur within the government, between the president and other public officials. Politically speaking, this is a naked attempt to protect the president from congressional investigation of potentially corrupt deals with his cronies, any of whom could be called 'advisers' to avoid subpoena."

Never Trump conservative David French, a New York Times opinion columnist with a background in constitutional law and litigation, has also addressed Trump and the unitary executive theory in his New York Times columns and appearances on MS NOW (formerly MSNBC). Where many Trump critics complain that the president fails to recognize Congress as a "co-equal branch of government," French goes a step further, arguing that the Constitution's system of checks and balances does not merely make Congress co-equal with the president — it gives the federal government's legislative branch even more power than its executive branch.

Feldman, in Bloomberg, urges Congress to fully exercise the legislative powers the Constitution grants it, warning that lawmakers cannot back down if Trump invokes the privilege in future confrontations with the legislature.

"If President Donald Trump invokes this executive privilege in future fights with Congress, as seems likely, the legislative branch cannot fold," the Harvard legal scholar stresses. "It must insist on its rights, bring the issue to court, and force the Supreme Court to reject the claim ... Historically, OLC (the U.S. Office of Legal Counsel) has tended to adopt a maximalist position on presidential power ... But the doctrine of executive privilege has never been extended to conversations between the president and people who were not part of the government."

OLC opinions, which administrations of both parties have relied on to justify assertions of presidential authority, are followed as a matter of executive branch practice but do not bind the federal courts.

According to Feldman, Trump and his allies fail to understand "why executive privilege exists in the first place."

"The core idea is that the president should be able to get the advice he needs to run the government from the people who are best suited to provide it," Feldman notes. "Those people are government officials, who take an oath to uphold the Constitution and follow the laws. They are subject to all kinds of conflict-of-interest rules designed to make sure their advice is based on the national interest…. Donald Trump, the most corrupt president of the modern age, is asserting a broad new executive privilege designed to protect precisely corrupt cronyism. Neither Congress nor the courts can let that become the law."