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.