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.