Why Can't the Democrats Pin Trump Down?

As President, Donald Trump has been uniquely successful in harnessing the weaknesses of American democracy to push aside challenges to his autocratic impulses.  Some of these weaknesses are inherent in the Constitution; others result from a diverse set of extra-constitutional limitations that hamstring potential responses.

Fortunately, the impact of these weaknesses has been mitigated by a well-established set of political and ethical norms to which politicians and political parties have unofficially adhered over the years.  Potential demagogues -- such as George Wallace or Joe McCarthy -- who have tried to sidestep these norms have so far been sidelined. 

Until now.  Trump’s willingness to break these norms -- such as threatening the press, demonizing his opponents, tacitly accepting violence in his supporters -- has given him enormous power.  He has been aided and abetted by a Republican Party that has ignored its constitutional responsibility to oversee the executive branch of government, which has vitiated the balance-of-powers essential to our government.  Because of the President’s heretofore unparalleled dominance of the mainstream media, the country has been unwilling (or unable) to recognize the extraordinary danger he poses to our democracy.

The questions for today’s post are:

• How did we get here?  
• Why have the Democrats, the media, and others been unable to respond effectively to the danger into which Trump is leading us? 

There are two rough categories that have prevented an adequate response: a) weaknesses inherent in the Constitution and b) extra-constitutional weaknesses within the structure of the country.

Inherent Constitutional Weaknesses

The American Constitution is 224 years old.  It was written when the population of the United States was 2.5 million (less than 1% of today’s population), and comprised only 13 states.  Despite the claims of originalists and textualists, the document should not be expected to respond adequately to today’s many challenges.

In many ways, the Constitution has been remarkably successful.  But there are assumptions written in to it and important holes in it that can cause problems in modern situations.  In addition, the Constitution has been dependent upon unwritten rules broadly accepted by politicians and political parties in order to bridge the gaps in the document itself.  We can no longer depend on a text written over two centuries ago (and remarkably resistant to amendment) to allow government to survive direct challenges.  Here are some of the weaknesses in the Constitution itself:

• As above, government requires a set of traditions and norms that depend upon politicians’ commitment to the good of the country rather than to self-interest.  When the president has little respect for constitutional norms and acts too far outside the bounds of ordinary prudence, the Constitution -- written by Founders who assumed good intentions and dedication to the spirit of its intent by any and all presidents -- may not be sufficient.

• After their experience with the English monarchy, the framers of the Constitution were intent on preventing a powerful executive, so they gave the president relatively few powers and then limited even those with the threat of impeachment. This may have been effective in 1787 when government was small and needed no strong executive to function.  But in the intervening years the executive branch has, of necessity, grown more and more powerful.  Cabinet departments—the Justice Department, the EPA, the Treasury Department the Commerce Department and all the others—are obviously necessary to run our large and complicated society, but they are all under presidential control, which gives the president constantly expanding power. 

• Some of the writers of the Constitution recognized the dangers of political parties.  George Washington, for instance, feared them because partisanship would follow and lead to a “spirit of revenge” in which party members would not govern for the good of the people, but for power.  He warned in his farewell address that

  the spirit of political party serves always to distract the public councils and enfeeble the public administration.  It agitates the community with ill-founded jealousies and false alarms [and] kindles the animosity of one part against another.

But even he could never have foreseen a two-party system that was as polarized as Congress is now.  This polarization has made it virtually impossible for Congress to limit a president if one of its two branches is from the same party as the president.  For instance, Republican failure to investigate obvious examples of Trump’s obstruction of justice renders the constitution’s balance-of-power provisions almost moot.  

• Finally, while the Framers gave the president very few explicit powers, they also did not much limit them.  This has resulted in presidents throughout history appropriating powers by fiat that were almost impossible for Congress then to challenge.  The need for a strong commander-in-chief, for instance, gave President Harry Truman the power to effectively declare war on North Korea without the constitutionally mandated congressional approval.  Every president since has similarly waged war without a congressional declaration.  As in other instances, Congress has simply been unwilling to confront this arrogation of power

Extra-Constitutional Weaknesses

Historical developments in our country are also challenges to democracy.

• For the first time in American history, we now have a national news source—Fox News—that claims itself “impartial” but is, for all practical purposes, a propaganda arm of Trump and the Republican Party,

performing a function similar to that of government-controlled media in increasingly authoritarian Poland and Hungary — stating untruths, spinning conspiracy theories, and diverting attention from the administration’s malfeasances. 

These untruths and conspiracy theories leave us without agreed-upon facts, meaning informed political debate and decision making are no longer possible.  It would be hard to exaggerate Fox’s profound effect on our democracy.

• The President is able to control political discussion because of his dominance in social media.  His multiple daily tweets, speeches, campaign rallies and other public appearances overwhelm the opposition simply by their sheer quantity.  The mainstream media must report each of the President’s tweets, whether they are significant or not.  (Trump’s recent take-over of the national Fourth of July celebration, for instance, may be important to us Washington area residents, but it is only national news as one more example of his almost daily egregious behavior.)  Even the media’s attempt to point out Trump’s lies or obfuscations has only played into Trump’s hands: Even negative publicity keeps him in the news.

• The President takes actions that are almost certainly unconstitutional (eg his multiple Muslim bans) but when he is slapped down by the courts, he shamelessly turns around and tries a variation again.  He even takes the opportunity to disparage the court system (or particular justices) for his defeat.  What is important is that Trump’s daily, apparently irrational onslaught leaves his opposition little space for more complex, rational responses.  It is much easier to throw lies or misleading facts into the ether than it is to counter them with rational argument.  The opposition is constantly playing catch-up.

• Historically, the legal process has developed to be slow and measured, in large part to provide enough time to discover the truth,   Appeals, however, can take months to years.  A president can easily delay the legal process almost indefinitely, allowing him to act so that the appeals are still unresolved until after their importance has waned.  It has occasionally possible to shortcut this process.  For example, Federal Court of Appeals Judge Amit Mehta has recently shortcut the President’s refusal to turn over certain accounting records.  Far more likely, however, are months of litigation.  And Trump has been willing to appeal court judgments over and over.  He and his businesses brought lawsuits over 3500 times before he became president.

• Republican Congresspeople know that their political fates lie in the hands of the extreme right because those are the ones to show up at the primary elections, thus dominating the selection of candidates.  Given Trump’s 80% popularity in the Republican Party and his dominance of the extreme right wing of the party, Trump can count on Republican support in the legislature for even his most outlandish actions.

• Despite the Mueller report’s documentation of ten instances of illegal obstruction of justice. Mueller’s decided not to prosecute** and Trump has used that to claim exoneration, which he repeats over and over and is supported by the Republican echo chamber.  He has, apparently quite effectively, been able to neutralize the impact of the report.  Once again, Trump’s shameless, repetitive lies leave the opposition gasping for breath.

These conditions and court decisions have all been available to other presidents throughout our history.  True, other presidents have occasionally used such power (for instance, as above, transforming limited military action into war without congressional declarations).  But Trump has used these gray-area powers to such an extraordinary degree he moves us much deeper into a true imperial presidency. 

This pattern has been used by demagogues throughout history.  Even the pronouncements Adolf Hitler first used to assume power were technically legal.  Turkey’s Erdogan and Hungary’s Orbán have used almost identical tactics to take power.

In recent weeks, as Trump has declared his blanket refusal respond to congressional subpoenas, the conflict between Trump and Congress has escalated.  Will the Democrats be able to pin Trump down?
_______________

** Mueller believes it improper to his role to draw the conclusions about whether Trump should be prosecuted, but the implication is clear.

Congressional Oversight I

Executive Privilege

The purpose of this blog has been to explore President Trump’s assaults on our democracy.  With the President’s attempts within the last several weeks to refuse all congressional investigations and to block completely Congresses’ constitutional responsibility to provide oversight of the executive branch of government, we move into new and dangerous territory. 


This President survives on chaos.  An important part of his modus operandi is to throw outrageous comments and actions at the wall and see what sticks.  In the meantime Congress, the media and the public are overwhelmed by his challenges to the point that adequate responses get buried in the onslaught. 

• Since the release of the Mueller report, Trump has insisted that the report exonerates him.  This is simply a lie.  In actual fact, the report explicitly outlines at least ten different instances of obstruction of justice.  Mueller makes it explicit that he is not exonerating Trump, only gathering the facts.  He does not press charges because prosecution of a sitting president is not legally permitted.  It must be left to congressional impeachment or prosecution after Trump leaves office.  Nevertheless, the President, his supporters in Congress and the media parrot this obvious lie, which reveals once again the Republican Party’s utter complicity in obstructing justice.
• In the context of clearly legitimate investigations by the House of Representatives, Trump has invoked absolute executive privilege to prevent all documents from being released and all subordinates from being interviewed.
• Trump has refused to allow his Secretary of the Treasury Mnuchin to release the President’s tax returns even though, by law, Mnuchin has a clear responsibility to do so.
• And on and on.

The President twists the law and disregards the Constitution almost daily, and those who would hold him accountable just can’t keep up.  If one charge doesn’t stick, Trump either doubles-down or forgets it and moves onto the next.  He is a moving target. 

Trump’s claim of executive privilege in order to prevent congressional investigation of his presidency is a good example.  The Supreme Court has concluded that the

power of the Congress to conduct investigations is inherent in the legislative process.  [That power is broad enough to include] probes into departments of the Federal Government to expose corruption, inefficiency or waste ….

A federal court of appeals declared that “[a] legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress.”  The concept delineated in this phrase is part of the foundation of the separation of powers fundamental to our government.  It is the basis of the “separation of powers” fundamental to our government.  Although there have been several specific legal challenges to this congressional responsibility (the impeachment hearings of Presidents Richard Nixon and Bill Clinton are two examples), no one until now has challenged the basic responsibility of Congress to provide oversight of the executive branch.  Trump’s blanket refusal is unique in American history.

The President’s claim of executive privilege, however, does muddy the waters.  Executive privilege is not an enumerated constitutional right.  Although numerous presidents (starting with George Washington!) have attempted to block congressional attempts for documents, most conflicts between presidents and Congress have been resolved through negotiation and compromise.  In fact, the doctrine of executive privilege didn’t even exist until President Richard Nixon’s impeachment hearings in 1974 when the Supreme Court legitimized it.  Executive privilege

covers communications between the president and his closest aides on matters that must be kept from Congress or the courts to protect the effective operation of the executive branch. 

Although the Supreme Court has failed to define executive privilege clearly and completely, some things are certain: Executive privilege

• is a limited power.  It can only be invoked for specific purposes that are clearly identified and legitimate.  Trump’s blanket refusal will not hold up in court.
• cannot be used to prevent investigation of a criminal charge.
• cannot be used to prevent investigation of behavior that took place before the president’s inauguration.
• cannot be used to keep individuals who are no longer subordinates to the president from testifying.

After reading multiple explanations of executive privilege, the one thing that I can say for certain is that it is still a fuzzy concept.  Discussions may be found here, or here.  But the President steps so far over the boundaries of executive privilege that arguments about the exact definition are hardly required.

Perhaps the most revealing aspect of Trump’s claim to executive privilege is its breadth, which makes obvious his intent to obstruct the process.  He has refused to turn over any documents, refused to allow the testimony of any of his aides, tried to block the testimony of people who were not his subordinates, refused to turn over the complete Mueller report, and claimed privilege for events that happened before he became president.  The courts will eventually rule against him, but the process may take months or even years.

With his willful violation of constitutional principles, the President has found a way to (temporally at least) withhold all information that has been or will be subpoenaed by the House Judiciary Committee (or any other congressional committee), thus fundamentally challenging the constitutional mandate for congressional oversight.  It is a profound challenge to our democracy.  The President is fighting for the power to rule our country without any oversight, the very definition of autocracy.

These are perilous times.  When I began this blog I was, of course, concerned about our democracy, but I had confidence that our democratic structures would hold against the assault and things would eventually turn to a relative normality.  Now, I’m not so sure.  For the first time since I’ve been writing this blog, I fear for the ultimate survival of our democracy.

Mueller Report: No Collusion

Russian Connections

The Mueller Report indicates that despite multiple contacts between the Trump campaign and various Russians, the investigation did not find enough evidence that either Trump or officials in his campaign “colluded”* with Russia to interfere in the 2016 presidential elections.

Mueller’s charge in the investigation was to find “any links and/or coordination” between the Russian government and individuals associated with Trump’s campaign.  The forty-plus instances of documented contacts between the campaign and Russia indicate that the Russian government wanted Trump to win and worked actively to support him, breaking a number of US laws in the process.  It also shows that the Trump campaign was more than happy to receive data and other help from the Russians.  But, as Mueller correctly reports, these contacts are not the same as “links” or “coordination.”  From that point of view, President Trump had nothing to fear from Mueller’s investigation into Russian interference in the election.  It appears that if Trump had simply left Mueller’s investigation to proceed unobstructed, there would be no issue now.

Obstruction of justice, however, is another matter completely. 

Obstruction of Justice

From the very announcement of the special investigation, Trump seems to have been terrified.  Mueller’s report quotes the President:

Oh my God, this is terrible. This is the end of my presidency. I’m fucked, … Everyone tells me if you get one of these independent counsels it ruins your presidency. … It takes years and years and I won’t be able to do anything. This is the worst thing that ever happened to me.

It is then that the obstruction of justice apparently began.

Against his own interests, President Trump was unwilling to leave the investigation alone.  There is abundant evidence in Mueller’s report that the President began almost immediately to try to obstruct the investigation, for instance, asking James Comey to suspend the investigation of Michael Flynn “because of the Russian thing.”  A few days later Trump, himself, fired Comey.

According to the report, Trump obstructed justice and therefore broke the law.  Why didn’t Mueller just say so?

All those who have read the report agree that it offers a point-by-point portrayal of the President’s efforts to obstruct justice by interfering with Mueller’s investigation.  But despite the overwhelming evidence, the report refuses to give an opinion as to whether or not Trump broke the law.  This is not — as Attorney General William Barr initially implied — because Mueller is unable to make up his mind.  Rather, as Mueller writes in several places in the report, it is not his role to determine whether the President broke the law.  That is Congress’s responsibility.

Mueller is quite clear, however, that the report does not exonerate Trump from the obstruction-of-justice charge:

• Mueller's team unearthed "multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, [of both] the Russian-interference and obstruction investigations."
• Mueller reports he would have exonerated Trump if the facts had supported that conclusion, but it adds that "based on the facts and the applicable legal standards, we are unable to reach that judgment."  This is a long way from “exoneration.”

For all practical purposes, Mueller does indict Trump.

Checks and Balances

The accepted understanding of “checks and balances” gives only to Congress power to prosecute the president.  Appointed by the Department of Justice, Mueller is a representative of the executive branch (and, therefore, formally under Trump!) and correctly concludes that he should not make that judgment.  Nevertheless, the report provides a clear roadmap for a congressional investigation.

This nuanced approach, of course, leaves President Trump the opening to declare that the report exonerates him of any wrong-doing. 

So how does Mueller justify not making a clear statement about what would seem to be an obvious judgment?  He cites two issues:

1. “A federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern.”  This follows the Justice Department’s Office of Legal Counsel’s 1970 memo that

restated the Justice Department’s view that the text of the Constitution does not give the president express immunity from prosecution but that the powers of the presidency are so vast and important as to bar the indictment of a sitting chief executive. (An indictment or jury verdict would have a “dramatically destabilizing effect…)

A sitting president cannot be criminally prosecuted, but presidents can face criminal prosecution after leaving office.  While there is debate about this judgment that a sitting president can be indicted, it is clear that Mueller agrees with it.  He lays out the evidence and leaves it to a later prosecutor to use the evidence for a criminal case.

2. If sitting presidents cannot be legally prosecuted, Congress has to fulfill its constitutional obligation to investigate and, ultimately, to impeach them and remove them from office.  From the report:

The conclusion that Congress may apply the obstruction laws to the president’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.

Mueller does not want to “preempt constitutional processes for addressing presidential misconduct.”  Again, he will present the evidence, but it’s up to Congress to act.


The President’s trumpeting that he has been exonerated,  then, is simply untrue.  What Mueller does not do is exonerate the President.  Anyone reading the report will understand that the President is guilty of obstruction of justice; we do not need Robert Mueller to draw that conclusion.

*Although the President's favorite characterization of the investigation, “collusion” is not a legal term, the dictionary definition of which is “a secret or illegal cooperation or conspiracy, especially in order to cheat or deceive others.”  This would require a much greater burden of proof than the charge given to the investigation.