Sidelining the Referees

Among the most important steps in shunting a democracy toward autocratic rule is to sideline the referees.  In our democracy, the rules in the often-contentious relationships between the president, Congress, and the courts are sometimes murky and not fully defined.  As in a soccer game, political struggle requires referees: the media, the press, and popular opinion are obvious examples.  We often forget, however, that some of our democracy’s referees are parts of the executive branch of government, formally under the president's authority: the intelligence agencies, law enforcement, tax officials, and regulatory departments also meant to enforce the rules. 

One consistent feature of government under Donald Trump has been the sidelining of these referees.  For instance, Trump routinely makes aggressive, unprecedented efforts to limit, even compromise, the intelligence community, for example, his denial of the unanimous assessment that Russia had compromised the 2016 elections. 

What have been less well understood are the President’s attempts at personal takeover of governmental agencies.  These certainly do belong to the executive branch (and are therefore under the president), but they have historically been powerful, independent forces as referees.  

The Department of Justice (DOJ) is a prime example.  Jack Goldsmith of the independent Lawfare blog writes, “Every presidency since Watergate has embraced policies for preserving DOJ and FBI independence from the President in certain law enforcement and intelligence matters."   There should not even be the appearance that the president is trying to influence a DOJ investigation. 

One of Donald Trump’s first actions, for example, was to attack his Attorney General Jeff Sessions for not taking control of the Russia investigation, from which Sessions had properly recused himself because of a conflict of interest.  Trump eventually nominated William Barr who was confirmed in the Senate.  He was a lawyer who had served in different capacities in which he had acted on the basis of “the rule of law, public safety and the fair application of legal rules to all."   Since his confirmation, however, Barr has not been an independent voice.  For instance, he responded to Trump’s attacks on the Russia investigation by launching his own investigation of the investigation. 

The President has dismissed four chiefs of staff and many others.  National Security Advisor Michael Flynn, White House Communications Director Anthony Scaramucci, and Secretary of Health and Human Services Tom Price have had the shortest-service tenures in the history of their respective offices." 

Many of Trump’s appointees — even Cabinet members — have not been submitted to the Senate for confirmation.  For example, the secretaries for Homeland Security, Defense, Veterans Affairs, and Health and Human Services are all “temporary."   When asked about this executive branch turmoil, Trump replied:

We have acting people.  The reason they are acting is because I’m seeing how I like them, and I’m liking a lot of them very, very much.  There are people who have done a bad job, and I let them go.  If you call that turmoil, I don’t call that turmoil.  I say that is being smart.  That’s what we do.

The President has unilateral power to hire and fire his cabinet without congressional interference.  The President has subsequently surrounded himself with “yes-men."   Secretary of State Mike Pompeo publicly defended the unfounded conspiracy theories about Ukrainian interference in the 2016 election.  Ambassador Gordon Sondland, a Republican donor, placed himself in legal jeopardy with his testimony supporting President Trump in the House impeachment inquiry.  Attorney General Barr misinterpreted the Mueller report in Trump’s favor.  And so on.

In curtailing the independent voices within his cabinet, Trump has not only insulated himself from dissenting voices but also decimated one set of referees who might constrain him.  His first three appointees as Chief of Staff were widely noted as the “adults in the room."   But these men resigned or were fired.  Finally, he chose Mark Meadows, a former Congressman “who is considered one of Trump’s staunchest congressional allies,” unlikely to stand up to the President.

This sidelining of mature and independent voices is certainly not of the same magnitude as Trump’s “fake news” attacks on the press or his nearly daily conversations with the fawning far-right Fox News commentators.  But his silencing of independent referees within his own administration is on a similar scale.  One set of the primary referees in the struggle for good government is disappearing.  It’s one more dangerous step on the march toward autocracy that we  must continually monitor.

Pandemic and Autocracy

During this coronavirus pandemic, as in many past world crises, state leaders are using the emergency to deepen the centralized power of governments around the globe.  Populations can be eager for someone to “take charge” and deal with the crisis.  In the process, however, constitutional, judicial, and congressional restraints can be weakened and citizens may not notice the danger until it is too late..

Historically, there are strong US precedents for presidential assumption of near-autocratic power that raised little or no objection, for instance,

• Lincoln’s suspension of habeas corpus during the Civil War;
• Roosevelt’s interning of Japanese during World War II;
• GW Bush’s rounding up Muslims willy-nilly after 9/11.

Around the world in the current crisis, the same response has been widespread.

• Hungary’s Viktor Orbán pushed his parliament to give him indefinite dictatorial powers.  
• Benjamin Netanyahu authorized his country’s internal security agency to track citizens using a secret trove of cellphone data developed for counter-terrorism. 
• In Jordan, an emergency “defense law” has given wide latitude to Prime Minister Omar Razzaz to “deal firmly” with anyone who spreads “rumors, fabrications and false news that sows panic.” 
• Malawi’s Peter Mutharika has postponed elections
• and so on. 

To be sure, some centralization of power is necessary to respond in emergencies.  The president’s activation of the National Guard is appropriate after hurricanes.  Emergency appropriation of funds not yet approved by Congress may be necessary after other natural disasters.  But emergency assumptions of power can too often become indefinite in length or even permanent.

President Trump is using the Covid-19 pandemic to continue his National Emergency powers originally implemented to build the border wall without congressional oversight.  And he recently began refusing entry on the Mexican border to all immigrants, regardless of their refugee status or their right to enter the United States.  Thus, habeas corpus (the right to appear in court a judge before trial) has been essentially suspended on the border for the duration of this pandemic.

Donald Trump is impatient with the democratic principles that regulate the power of his office, and he has praised autocrats around the world.  Recently when asked what authority he had to re-open the country during that pandemic, he said that he had “ultimate authority.”  Later, he clarified, “When somebody is the president … the authority is total and that’s the way it’s got to be.”  Speaking of the power of governors and other local officials during the pandemic, he said that they “can’t do anything without the approval of the president of the United States.”

His statements created a firestorm, which was reassuring.  Even some important Republicans pointed out that what Trump was saying was in clear violation of the Constitution.  The President quickly backpedaled.  While not admitting error, he announced that it was “up to the states” to decide when and how to modify the lockdowns in their own states.

Once again, democracy held up.  For that we can be grateful.  But the pandemic is not over.  It’s important to notice once again how the President understands his role in our democracy. 

Democracy itself requires that we remain vigilant to the President’s use of power during this crisis.