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.

Pandemic and Truth

COVID-19 is here.  There is much, and there will be much more, suffering — physically, emotionally and economically.  This will be the worst global peacetime crisis since, at least, the Great Depression,  It will have a profound impact upon our democratic process.  Whether that impact will be destructive or constructive depends in large part on whether this pandemic helps us re-learn to trust one another and that will depend on our capacity to trust.

Trust — in government, in science, in the media and in Truth itself — is a prerequisite to a functioning democracy.  While the Constitution and subsequent laws are essential, they are not enough.  Rather, a democracy requires norms, unwritten rules broadly accepted by politicians, political parties and ourselves in order to bridge the gaps in legal formalities.  Much of the crisis in our democracy today comes from the crumbling of these norms

In these first weeks of the pandemic, we have become profoundly aware of the danger of this mistrust.  We are on shifting sands, incapable of mobilizing our power. 

• We must be able to trust that the government will do everything in its power to collect and present to us accurate information.  We must be able to trust the government experts to tell us, what we must do in order to confront what we face.  We must trust that the government has our best interests at heart.  This is not to say that government is 100% trustworthy, that our trust will not sometimes be violated; it is to say that government will discover these violations and repair them.  In these times we must start out in a position of trust and move away from it only with reliable evidence to the contrary.
• We must trust science: that it is doing everything possible to find a reliable understanding of the virus and its treatment.  There are facts.  We must understand that the opinions of experts are more reliable than our hunches.  We must trust that our scientists will be allowed to communicate with our leaders without fear of recrimination.
• We must trust the mainstream media§ to pass on to us accurate information.  We must trust that they will not downplay or exaggerate it.  All media know that violence and sex sell; catastrophe sells.  This is a time, however, when we must be not only completely informed but also not coddled or panicked, especially in this day of the 24-hour news cycle.  We must trust that the media can confine themselves not only to the accurate but also to the wise.  And those who work in the media must trust us to be able to deal with the truth.
• We must trust that there is a Truth, that not everything is a matter of opinion.  Facts are not debatable or up for grabs.  “We may have our own opinions but not our own facts.”  And we must trust that we can discover that Truth, even if our inevitable guesses are sometimes inaccurate. 

Ultimately, the most important is trust in one another.  Without it, there is no beginning point.  I’ll examine that in our next post.  But trusting in government, science, media and Truth, we must be able to dispense with our paranoia and recognize that we are all doing the best we can under these unique circumstances.  We need, especially when we find it difficult, to double-down on our trust.  We must begin from the place of Trust.

**These days, one frequently finds quotation marks around "the truth," as if its very existence was questionable.  This is understandable in the light of "alternative facts."

§Until recently, the term "mainstream media" was used primarily by radical institutions to assert a propagandistic nature of the press.  This usage has now become widely accepted, indicating that for many people, nothing in the press can be trusted.  As above, the widespread belief is that truth, in any objective sense, is unavailable. 

What Shall We Do with The Republican Party?

We must begin to ask the question: Does the Republican Party any longer have a place in a liberal democracy?**  Bipartisanship has always been central to good government in the United States.  But, at some point, we must take a longer view and ask whether the modern Republican Party can be an acceptable option for a free country.  And if not, what is the option? 

We must ask this question with utmost seriousness and care.  We must ask it with the expectation that some Republican leaders will reach the same conclusion and temporarily join with the Democrats to remove Trump from office in the coming election.

Since beginning this blog in September 2017, I have believed that bipartisanship was the only way to prevent President Trump’s damage to American democracy.  Especially after the 2018 Democratic take-over of the House of Representatives, it seemed to me likely that the Republican Party would see the handwriting on the wall and realize they would have to dissociate themselves from the President in order to remain politically viable.  Instead, the Senate vote to exonerate him makes Trump’s takeover of the Republican Party complete. 

The core of the problem, however, is not Donald Trump.  Rather, the cultural and political system, especially the Republican Party, had already prepared the way for a demagogue like Trump and his illiberal brand of democracy.  His election was not a fluke but the culmination of the 25-year devolution of Republican politics.

Well before Trump’s takeover, the Republican Party began sliding into anti-democratic behavior.  While the steps it took were almost always legal, the party, nevertheless, obliterated many of the political norms necessary to a democracy. 

We might mark the beginning of the Republican slide in 1994 when Newt Gingrich guided the party toward a new depth of partisanship.  He led his fellow representatives to vote increasingly as a monolithic block according to the dictates of party leaders rather than according to their own beliefs and their constituents’ needs.  The Democrats eventually followed suit but, in their diversity, were never as effective.

Another marker occurred after the 2008 presidential election, when Senate Majority Leader Mitch McConnell declared that the primary goal of the Republican Party over next four years was to prevent the reelection of President Obama.  This was an acknowledgment by McConnell that the political interests of the Republican Party were more important than the overall interests of the United States.  For the next eight years, the party dedicated itself, more than anything, to obstructionism.

The most shocking Republican destruction of a political norm occurred in 2016.  In an unprecedented move, McConnell declared that he would not even allow the Senate to vote on Obama’s appointment of Merrick Garland—widely considered a political moderate—to the Supreme Court.  As were so many other Republican moves at this time, McConnell’s action was technically constitutional. The Constitution is explicit, however, that the president shall appoint Supreme Court justices and the role of the Senate is “advice and consent.”  Nevertheless, McConnell explicitly denied a President his privilege for the first time in the history of the country.  It was hardball politics taken to the extreme.  The democracy cannot survive such destruction of norms.

It should be noted that McConnell’s action was actually only symbolic, almost certainly meant purely to demonstrate his power over (and contempt for) President Obama.  The Republicans controlled the Senate, and McConnell could easily have allowed a vote and then required his party to withhold “consent” and thus defeated Garland’s nomination without such a power-play.  There was no real reason to refuse consideration of Obama’s nominee except to demonstrate his power. 

In a speech later that year, McConnell declared that “One of my proudest moments was when I looked Barack Obama in the eye, and I said, 'Mr. President, you will not fill the Supreme Court vacancy.'” 

There are many other examples compiled by the New Republic’s Osita Nwanevu.

• The Republican National Committee’s endorsement of credibly-accused child molester Roy Moore for an Alabama U.S. Senate seat in 2017.
• Despite overwhelming evidence that voter fraud is minuscule, 30 Republican-controlled states have been passed laws — ostensibly to prevent voter fraud — that, in fact, suppress voting, largely in communities of color:

• closing polling places
• purging eligible voters from the rolls without their knowledge
• barring felons from voting
• voter registration voter ID laws
• eliminating early voting
• By their acquiescence, the Republican Party has assisted Donald Trump in promulgating the detention of children along the Mexican border.
• Between the election and the governor’s inauguration, Wisconsin Republicans passed a wide-ranging bill that stripped power from the state’s elected Democratic governor and attorney general.
• When North Carolina Republicans lost their veto-proof majority in 2018, they resorted to a critical budget measure on a day in which they had informed Democratic lawmakers specifically that no votes would be scheduled.

The refusal of the Republican Party to remove Trump from office in his impeachment trial is not an extreme exception.  It is but the latest Republican transgression.

Osita Nwanevu writes:

Donald Trump is not a departure from the values defining the Republican Party, but the culmination of its efforts to secure power in this country. The question before us is not how much more the Republican Party might be willing to tolerate from the president but how much more we are willing to tolerate from the Republican Party.

Since voting (unanimously-minus-one) for Trumps’ exoneration, the individual members of the party are now responsible for Trump’s worst excesses.  Their refusal to confront the President gives them no excuse.

It is no longer a partisan issue when   

•  the President threatens to jail his opponents;
•  he attacks the judiciary,
•  he tolerates violence on his behalf,
•  he offers a bribe to a foreign country to support his election,
•  he declares the need to change or violate the Constitution,
•  he threatens civil liberties,
•  he threatens the free press with libel suits and calls it the “enemy of the people.”

The Republican legislature could prevent all this.  This is no longer a “political situation.”  It is in a fight for the soul of our democracy. 

To be clear, ultimately the United States must return to a bipartisan (or, preferably, a multi-party) liberal democracy.  But that seems impossible with the current Republican leadership.  It is time to move actively to dismantle the Republican Party.  It no longer has a place in a liberal democracy.


** I am using the term “liberal” here in its classical sense: a political and moral philosophy based on liberty, consent of the governed and equality before the law.  An illiberal democracy refers to a country in which there may be elections but other civil rights (for instance, a freedom of the press, freedom of speech, and so on) are limited.  For instance, Turkey, Hungary, and Venezuela are illiberal democracies.  You can have also liberal autocracies, meaning that there are no free elections, but civil rights are basically maintained.  Most liberal autocracies, however, generally devolve into complete autocracies.

Trump Unchained

The last two weeks have given us a preview of President Trump’s behavior after the November election, whether he wins or loses.  The President has shown us that he is no longer just a political problem or even a symbol of our dysfunctional partisanship.  He has become a profound threat to our liberal democracy.

Since his inauguration, the President has crossed so many red lines that I hesitate to say he’s crossed another one.  The weeks since he was acquitted of impeachment charges, however, have given us extraordinary examples of letting Trump-be-Trump.  He views the Republican Senate’s verdict as complete exoneration and as a greenlight to use his power without constraint. 

As an individual, Trump can be vulgar, blasphemous, obscene, indecent, misogynistic, xenophobic, and more.  As a politician, he has exacerbated the racism in our country, encouraged violence against those who oppose him, violated national and international law and embarrassed our country in the eyes of the world.  As bad as these are on a personal and political basis, however, they are relatively innocuous compared to the menace the President has become to American democracy.

The President has now initiated a campaign of revenge against those he believes have treated him unfairly.

President Trump turned his anger into action by removing Lt Col Alexander Vindman from his National Security assignment at the White House.  The reason for his dismissal: Vindman’s legally mandated, truthful testimony before Congress.  He was abruptly terminated from the White House and escorted from the building.   

Trump also removed the Ambassador to the European Union Gordon Sondland, apparently for the same reasons.  More firings are expected. 

Worse, the President tried to interfere in the military justice system, tweeting that the military “should take a look at” Vindman’s behavior to consider further punishment.  Secretary of Defense Mark Esper responded that no charges would be pursued against Vindman; without, it should be noted, apparent consequences for standing up to the President.

Other examples of the President’s inappropriate behavior:

• He sought to intimidate federal judge Amy Berman Jackson, for her handling of Trump’s friend Roger Stone’s sentencing, badgering her on Twitter for previous rulings:

“Is this the Judge that put Paul Manafort in SOLITARY CONFINEMENT, something that not even mobster Al Capone had to endure? How did she treat Crooked Hillary Clinton? Just asking!”

• Trump went on to attackformer Director of the FBI James Comey along with other FBI personnel involved in the Russia investigation:

Where’s Comey? …What’s happening to [Andrew] McCabe? What’s happening to Lisa and — to Pete Strzok and Lisa Page?

• Trump withdrew the nomination of former US attorney for DC, Jessie K Liu for a high-ranking position in the Treasury Department, apparently after he’d been lobbied by her critics for her handling of the Mueller investigation.

It is important to recognize that in this Administration, tweets and comments are more than observations and suggestions.  When the boss asks, “Where’s Comey?”  He’s not asking for information; he is asking someone to do something about Comey’s “disloyalty.”  When Trump tweets that Adam Schiff (chair of the House Judiciary Committee) “has not paid the price yet for what he has done to our Country!” and is a “vicious” and “horrible” person, the President is either threatening Schiff or, worse, inviting someone else to exact the price. 

The fear of being attacked by the President has led to the Republican Party’s near-capitulation to the President’s will, as evidenced most clearly in the nearly unanimous Senate acquittal despite guilt obvious to any neutral observer.  Reporters have indicated that Senators and Representatives who vote to sustain the President often privately disdain his actions but are afraid to step out of line for fear of a Twitter attack and/or a primary challenge from a Trump ally. 

Finally, we cannot even imagine the impact of Trump’s sneering, mocking ridicule of those with whom he disagrees.  What does it do to a person when not only does the President humiliate him or her, but also the President’s followers turn against that person?  It is not surprising that several Republican members of Congress who have even minimally stood up against the President have chosen not to run for reelection.

And there are wider ramifications.  One little-noticed impact is the extraordinary increase in bullying in the schools.  Although the vast majority of these bullying episodes are never reported publicly, many we do hear about have used the same rhetoric and/or the same targets as the President’s.  The bullying comes not only from student Trump supporters but also anti-Trump students, but the language remains the same.

This is the stuff of autocracy. Trump has risen above the partisan and has become a historically unique threat to the entire political structure and, more importantly, to the American system of liberal democracy. 

Modern autocrats do not mostly begin by suddenly taking over the government.  Rather, as Levitsky and Ziblatt show in their How Democracy Dies, the takeover begins gradually, often with comments suggesting antidemocratic behavior; these are dismissed as “just talk.”  But as people are fired from their jobs and the autocrat suggests punishing innocent people, it becomes more than “just talk.”  In those now-fully-autocratic countries, elections still occur, independent newspapers still publish but are threatened into compliant behavior; the autocrat has innocent enemies “legally” investigated and often punished.  In retrospect, there are always warning signs.  Trump has now taken us past the warning gates into tangible behavior.

Most of us think that because of the historical strength of our democracy, the President is not yet powerful enough to really threaten it.  We have, after all, been able to contain the previous demagogues (Huey Long, Father Coughlin, George Wallace and so on); it’s easy to consider ourselves invulnerable. 

But these previous demagogues have been contained because bipartisan cooperation has taken them down.  The current Republican Party’s craven acquittal and support for the President’s autocratic behavior, however, changes the dynamics. 

There is no constitutional remedy if Congress will not intervene.

According to the President’s advisers and allies,

Trump [is] simmering with rage, fixated on exacting revenge against those he feels betrayed him and insulated by a compliant Republican Party [and] is increasingly comfortable [taking revenge] to the point of feeling untouchable.

The last weeks have given us a taste of President Trump unbound. 

If he is re-elected, he will feel affirmed and authorized to continue. 

If he is defeated, he will have 2½ months without constraints to take his revenge.

Can Democracy Survive the Impeachment Debacle

In January 2016, candidate Donald Trump said, “I could stand in the middle of 5th Avenue and shoot somebody and wouldn’t lose any voters, ok?”  The President delivered on his boast last week when all but one of the fifty-three Republicans in the Senate voted against removing him from office, thus exonerating him from the attempt to bribe a foreign government into supporting his 2020 election.  Those Republicans also cleared him of obstructing Congress, even though he had refused all documents and prohibited his subordinates from testifying before the constitutionally-mandated impeachment process.

Trump lawyers had few arguments.  It was quite clear he did what he was accused of.  Furthermore, it should be obvious that a presidential attempt to coerce another government into acting against the president's enemy requires removal from office.

His “exoneration” should come as no surprise to anyone who has been following the hearings.  Both sides made it abundantly clear that the vote would be along party lines.  What might surprise us is the willingness of the Republicans in the Senate to flout the Constitution so brazenly. 

Flawed as it is, the Constitution is all we have as a founding document.  It is the basis of American law.  We change it with amendments only with the utmost care and deliberation through a time-consuming process that involves the entire country.  The Republican Party has changed it with a fifty-two-person vote, pre-determined along partisan lines.

Given the existential threat to him, Mitt Romney’s vote for removal took extraordinary courage.
 

We are left with the conclusion that if the president’s party controls either house of Congress, the president is, indeed, above the law.

The purpose of this blog has been to chronicle the damage that President Trump has inflicted upon our democracy.  But he has been abetted by the increasing willingness of the Republican Party to violate political norms … and now this violation of a constitutional law.  It’s a previously unimaginable step toward the loss of our democracy 

We’re unlikely to heal this for decades!