Friday, December 16, 2016

The First Casualty of Trump

By Michael Dorf

This week, the American Constitution Society posted an open letter from a group of constitutional law scholars (including me) to Donald Trump, cataloguing the ways in which his campaign and post-election statements and announced plans threaten cherished aspects of our constitutional democracy. Although addressed to Trump and nominally urging him to change his ways, it is fair to say that Trump is not the intended audience. As Stanford law professor Pam Karlan, one of the signatories, said: "We are under no illusions that President-elect Trump … is going to bother to read a letter from law professors.” The point of the letter is to influence public opinion and people in positions of power--especially in Congress--to take steps to resist what might be the worst actions of a Trump administration.

Dahlia Lithwick and David Cohen wrote in Wednesday's NY Times that the initial task of resisting Trump has fallen to the likes of law professors because the Democratic Party--the obvious locus of resistance--appears to be AWOL. I'm not sure how fair a characterization that is. Wednesday's Times also carried a story about how Democratic elected state officials are gearing up to resist Trump by filing lawsuits and using state law to patch holes that Trump opens in federal law.

Lithwick and Cohen chide Democratic leaders at the national level for failing to follow the GOP playbook from the 2000 election by throwing whatever crazy arguments at the wall that they can in the hope that one of them sticks, but the comparison is inapt in a crucial respect. In 2000, Republicans were playing defense, because the initial count in Florida had Bush ahead and the Gore campaign was trying to reverse that result. Moreover, the Republicans knew ex ante that they had a decent chance of winning, because the Republican Florida governor was their candidate's brother, the SCOTUS had a majority of Republicans, and a majority of state delegations in the House--where a contested election would be decided--were Republican. With all of this institutional support, the Bush team expected to win. Although their ultimately winning argument in the SCOTUS was new, their ex ante position was strong. Gore took his case to the Florida courts because he thought, correctly, that he had a shot at winning there. Bush took his appeal to the SCOTUS--and would have gone from there to the House--because he thought, correctly, that he could win there.

By contrast, there is very little chance that enough of the GOP electors will heed the call of latter-day Hamiltonians in order to send the election into the House (where Republican delegations would vote for Trump anyway, given fear of primary challenges), much less to elect someone other than Trump. Nor is there any chance that the courts will void the election result. The notion that the national Democrats have brought a bunch of unarmed law professors to a gun fight is true, but only because they don't have any usable knives, much less guns. Put differently, Lithwick and Cohen invoke the stereotype that Democrats don't fight as fiercely as Republicans, but they don't offer any persuasive evidence for it in this case, even though the stereotype does have a basis in fact.

Having said that, I agree with Lithwick and Cohen that the arguments of law professors--as opposed to more substantial power plays by people with real power--are not an especially effective weapon against would-be tyrants like Trump. After all, the right has spent decades trying to delegitimize the authority of experts in general and academics in particular. Thus, the fact that a law professor--or climate scientist--says something is taken by the sorts of people likely to support Trump as evidence that it's wrong.

That fact, however, does not render public engagement by academics pointless. Amicus briefs are a case in point. Even if an amicus brief of mostly liberal law professors won't persuade Justice Thomas or Alito of its point, it can supply an argument that, say, Justice Ginsburg or Kagan can then use in an opinion or a dissent. That, in turn, can transform a merely "academic" idea into part of the law.

More broadly, academic work even in a purely academic setting will sometimes filter into the zeitgeist. The work of John Rawls has been cited exactly zero times by the SCOTUS; yet its impact on moral and political philosophy has undoubtedly been felt in the law in many ways that are difficult to trace.

Still, there is another difficulty that academics face when we seek to engage in public discourse. To the extent that academics have credibility, it comes from our dispassionate position. Rather than taking sides for partisan ends, we claim, we are merely telling it like it is. No doubt this is not a perfectly accurate description of any academic, but I do think that most serious scholars in most fields strive for something like this stance. A scholar with integrity recognizes evidence and arguments that point against her conclusion. She even recognizes when a position she thinks is correct, all things considered, leads to a conclusion she disfavors on policy grounds in particular circumstances.

Yesterday's Verdict column by University of Illinois Law School Dean Vik Amar is a good example of the latter. Amar didn't want Trump to be president (I assume). He doesn't even think that the Electoral College is a good way to pick a president. Yet his best analysis leads him to conclude, as he titles his column, that the "Electors Should Not Make Hillary Clinton (or Anyone Else Besides Donald Trump) President." When politicians will take positions that are manifestly self-serving and even downright mendacious, serious scholars who enter the public arena are fighting with one and a half hands tied behind their backs.

But fight that way we must anyway. If there is any justification for tenure, it is this: Serious scholars need job security to speak the truth, regardless of who finds it discomfiting.

Of course, even job security as against one's own university will not protect a scholar against a cultural revolution aimed at purging intellectuals. And even if a would-be American tyrant respects the decrees of judges enforcing the First Amendment, that will not prevent his brownshirts from intimidating faculty and others for engaging in what the tyrant and his enablers deem politically incorrect speech.

It is tempting to self-censor in response, to keep one's head down. Speaking up takes courage. But as Brandeis wrote about free speech in his Whitney concurrence, "courage [is] the secret of liberty."

In any event, cowardice is self-defeating. As Evan Osnos reminds us in a powerful New Yorker article, whether in Mao's China or elsewhere, autocracy depends on the acquiescence and collaboration of people who would not otherwise support autocrats. If truth is the first casualty of war, the shameless repetition of outrageous lies is a proven technique of autocrats. Everyone has some duty to speak up for truth, but those of us whose very business it is to tell the truth have some special obligation to do so.


David Ricardo said...

It’s not that Democrats don’t want to respond to the soon-to-come autocratic actions of a Trump administration that will install the Russian model of Oligarchic Rule in the United States, it’s that they are just not able. Part of that inability is a lack of ideological viciousness that characterizes the Republicans, the win-at-any-cost, the use-any-tactic, the ignore reality and lie-your-pants off rhetoric that is now the modus operandi of the GOP. But mostly that inability is lack of power and leadership and resources.

A minority party in the House has no power. But Democrats have made it worse for example by retaining Nancy Pelosi as Minority Leader. A dedicated and energetic Minority Leader would have spent the last months of the campaign in 12 to 14 hour days campaigning for and raising money for Democratic House candidates. If Ms. Pelosi did any of that it was sure invisible to us. The ugly fight over the head of the DNC is now consuming Democrats, planning an opposition to Trump is not.

The Republicans have played the game of politics so well that they now dominate a nation that leans Democratic. Consider my home state of North Carolina. But wait you say, didn’t the Democrats oust a sitting Republican Governor and elect a Democratic Attorney General, and won’t those individuals lead the party back to power. Well, no.

Thanks to gerrymandering and a moribund Democratic party, although evenly split North Carolina’s congressional delegation is Republican by 10 to 3. Its State Senate and State House have veto over-ride majorities. And as we speak the legislature is in the process of stripping the new Governor of much of his appointment and regulatory power in a Special Session they called to do just that. The legislation will be signed by the defeated (and disgraced) Krapper Kop Republican Governor Pat McCrory. This is a lot of things, but democracy it ain’t.

So in North Carolina if the Governor and Attorney General try the tactic of taking the new administration to court the legislature will simply vote to deny them the right to do so and then override a veto. And if anyone thinks this model of behavior is limited to NC, just wait and see how it is adopted nationwide by Republicans. And how well does a lawsuit initiated by Democrats do in District, Appellate and the Supreme Court controlled by Republicans?

Letters are nice, and the letter referenced by Mr. Dorf is outstanding. But taking control at the state and local level is what Dems must do. And by the way, they will have to do this alone. The press, with a few exceptions is now a fawning mess scared of being criticized and previously conservative op/ed sections like the WSJ that would have opposed a bromance between Trump/Tillerson and the Russians have abandoned their principles. And as illustrated by a meeting between Trump and tech execs, much of the opposition to Trump is fading in favor of currying favor in order to make more money. Dems will have to fight Koch Brothers and others billions with millions coming from who knows where. But reality is that at the end of the fight they may have lost, and so will have a democratic bastion, the United States of America.

Shag from Brookline said...

As a child of the Great Depression, I quite often recall what the humorist Will Rogers said more than 80 years ago: "I am not a member of any organized political party. I am a Democrat." The New Deal and the Fair Deal lasted until 1952 replaced by Republicans Ike/Tricky Dick. See-sawing of political dominance continued thereafter. We have witnessed it again in the 2016 presidential campaign. Overall, for an unorganized political party, Democrats have done fairly well. (Keep in mind that Hillary got almost 3 million more popular votes than Trump.) With President-elect Trump, perhaps a conservative wit might soon say "I am not a member of any organized political party, I am a Republican." Time will tell.

President-elect Trump will become America's first PG President. No, not in the sense of TV/Movies ratings, perhaps more in the sense of Parental Guidance by Trump with his children running the Trump Empire in efforts to avoid conflicts of interest (constitutional and otherwise). Rather, think PG in Trump's own words on the Access Hollywood tapes exposed to not only Americans but to the entire world, both allies and enemies, as only a portion of Trump's publicly accessible (via the Internet) amoral behavior during his pre-candidacy lifetime. While earlier Presidents may have had serious personal issues, the voters were not as aware of them as in the case of Trump. Trump's base can expect replays of Trump's past during his term, especially if and when Trump fails to fulfill his campaign promises to them, perhaps with Trump's base realizing it had been duped by Trump.

Yes, the Democrats can and should do more. But do Democrats have to be micro managed to succeed? Trump may be a political aberration. Time will tell, although there have been unsubtle hints so far during the transition. Perhaps patriotism, including by Republicans, will challenge Trumpism, particularly in foreign affairs.

In any event, I continue with Will Rogers: America needs a sense of humor, without which the joke of a Trump is on all of us.

Shag from Brookline said...

Andrew Rosenthal's NYTimes OpEd "To Understand Trump, Learn Russian" tells us there are two words for "truth" in Russian, "pravda" and "istina." A casualty of Trump has been "truth" in America, in the form of "Trumpravda."

David Ricardo said...

I wish I could share Shag’s more tranquil demeanor and somewhat more optimistic outlook, but reality dictates a darker approach. First of all along with the Andy Rosenthal’s piece in the NYT op/ed section there was also this piece along the lines of my earlier post about the existential threat Trump poses to the continued existence of the United States as a functioning democracy.

Is Donald Trump a Threat to Democracy?
With norms weakening, past stability is no guarantee of our government’s future surviva”

This is something I saw after I wrote my comments. It is scary when individuals with the prestige and education and credentials to write a lead opinion piece in the NYT come to the same conclusion that I who have none of that.

A second and equally worrisome but short term concern is whether or not the Trump policy is to provoke a confrontation in the Middle East leading to attacks which the hardliners of his administration use to justify the massive introduction of U. S. forces, aerial bombardment and even tactical nuclear weapons into the region. Consider the appointment of this odious individual as the new Ambassador to Israel.

“ President-elect Donald J. Trump on Thursday named David M. Friedman, a bankruptcy lawyer aligned with the Israeli far right, as his nominee for ambassador to Israel, elevating a campaign adviser who has questioned the need for a two-state solution and has likened left-leaning Jews in America to the Jews who aided the Nazis in the Holocaust.”

Friedman, who has zero diplomatic experience is an advocate of moving the U. S. embassy to Jerusalem.

“In a statement from the Trump transition team announcing his nomination, he said he looked forward to doing the job “from the U.S. embassy in Israel’s eternal capital, Jerusalem.”

The ‘move the embassy’ policy has huge negatives in that it can provoke a violent reaction from the Arab world with terrorist attacks on both the U. S. and Israel. That risk might be tolerable if there were huge benefits from the move, but not only are there not large benefits from such a policy, as near as one can tell there are no benefits. So why do it? Well if engaging in a massive military action in the area is the administration’s objective this provocation seems like a perfect tool by a perfect tool.

Joe said...

Trump hasn't even officially be chosen POTUS and some are talking about Democrats not "able" to respond. Bush talked about privatizing Social Security. Democrats responded. It didn't happen. Democrats didn't control Congress at the time. After Bush was deemed to go too far, Democrats were "able" to respond and won mid-term elections and get back both houses of the Congress etc.

I respect the problems of the Democrat, be it control of state legislatures or the problems of a party that cares about governing taking a Tea Party resistance policy. But, resistance and change includes a full accounting of what you have. Such as not ignoring (I have listed some) statewide control in red states.

This includes not going as far as some do in explaining the desperation of the situation. I understand the sentiment, but really (we hear gerrymandering makes change in the House hard, e.g., but Pelosi apparently didn't do enough to move the now very hard -- except in cases like 2006 and 2008 -- to move seats).

The battle is hard, but the Democrats managed 2000 & that was with a President and Cabinet that weren't so full with swamp dwellers and generals. Rice, Powell et. al. seemed like a sane bunch. Bush seemed a bit of a idiot, but wasn't Trump. Have cynicism. That's fine. But, Shag survived the Great Depression, legal segregation, the Red Scare et. al. So, perhaps, he has a special perception about how "this too will pass" ... without ignoring it will be hard.

Shag from Brookline said...

A major survival for me was the 1968 presidential campaign, with Nixon/Agnew prevailing in a close race over Sen. Humphrey. The main crisis for that election was the Vietnam War; but there was also the added matter of resentment to the civil rights movement. Nixon capitalized on both issues, with his secret plan for the Vietnam War and his Southern Strategy. Some of us were aware of Nixon's dark sides from his days as a congressman from CA and as Ike's VP. I tried to comfort a law school classmate more progressive than I that Nixon would not ruin the country, although in his second term he nearly did. Nixon won a second term overwhelmingly as the Watergate situation had not surfaced at least to voters. Even though Nixon had dark sides, he was part of the Republican Party establishment. Few anticipated the politically explosive aspects of Watergate. This was a time when the fourth Estate came through and brought about congressional bi-partisan efforts that forced Nixon's resignation. Our republic survived.

The 2016 presidential campaigns demonstrated the weaknesses of the Republican Party as Trump beat the "sweet sixteen" mostly establishment Republican candidates. The general election was ugly, with Trump prevailing even apparently to his own surprise. We have an idea from the transition how he might plan to govern based upon his nominees to date for cabinet and other key positions. Trump's win was not a mandate. He lost the popular vote to Clinton by almost 3 million votes. Trump's claim of a mandate based upon a yuuge EC win was ridiculed as #44 on the list of EC wins. As noted in an earlier comment, the public knows quite a bit about Trump's pre-candidacy amoral life. His nominees remain to be tested by the confirmation processes in the Senate. Democrat Senators will be will prepared. The public will learn much about the nominees, especially any political baggage they might have. Some of that baggage has already been revealed, but that may be the proverbial tip of the iceberg.

I assume these nominees have some awareness of Watergate and what happened to many of President Nixon's men. Nixon's men had long ties with the then Republican Party. Their participation in Watergate, their defenses of Nixon (and themselves) were fully exposed. Trump's nominees have to be concerned with how Trump will govern as the Fourth Estate and the public will quickly become aware in this Internet age of any misdeeds by Trump and his Administration. Based upon Trump's history, his changes in positions over the years, contradictory statement, massive Pinocchios, potential conflicts of interest, his bro-mance with Putin, etc, what can his nominees who make it through the nomination processes expect? Are they prepared to fall on their swords for Trump? The positive results of Watergate with the roles of the Fourth Estate and political bipartisanship should serve as cautions to such nominees. The Fourth Estate has expanded to the media, a media that some blame for accommodating Trump's quest for the presidency. Live by the media, die by the media. Both the media and Democrats have learned lessons.

Yes, I'm optimistic, having survived Nixon and his Watergate, as did our nation. Trump dreads being a "loser" even though he won the election. Now he has to perform subject to constitutional checks and balances unlike his role on "The Apprentice" reality show.

Shag from Brookline said...

Concerning roles of law professors on the Constitution, consider Georgetown's "Originalism Boot Camp." Sounds militant. Might there be a fife and drum corp to inspire young constitutional cadets of meanings and understandings of yore? With originalism coming in various sizes, the boots may not all go in the same direction.

Shag from Brookline said...

Will the Constitutional Cadre at Georgetown's "Originalism Boot Camp" be successful in getting the young Constitutional 'Cruits to march in originalism lockstep?

Shag from Brookline said...

While attributed to Lincoln, but without definitive proof:

“You can fool all the people some of the time and some of the people all the time, but you cannot fool all the people all the time.” - See more at:

will hopefully prove true with its conclusion as we are about to enter the presidency of America's first PG* President Donald J. Trump. I read a blog post this morning (Daily Kos?) that mentioned Putin's goal in his earlier reign as Russia's president to "Make Russia Great Again." Most likely Putin was referring to the dissolved Soviet Union and not pre-Revolution Russia, what with Putin's KGB background. This reminded me of Trump's presidential campaign slogan to "Make America Great Again."

But Trump never specified when America was indeed "Great" that we should restore those times. I've been around since 1930 and I have no idea of Trump's timeline, assuming America was "Great" during my lifetime. Trump's base swallowed Trump's theme. But I'm not aware of a time prior to my birth on which there is a consensus that America was so "Great" that we should revert to it. (There are some idiots out there who believe that America's best days were the late 19th century's "The Gilded Age." Some, perhaps many, of us progressives feel we're in a Second Gilded Age, e.g., Jack Balkin.) I'm not aware of any polling that addresses when Trump's base thought America was so "Great" as to be restored. Many of Trump's base may have had in mind those days when there were good manufacturing jobs, before the Reagan Administration, with strong union support. It has been said that Trump's slogan was "stolen" from Reagan. But Trump's bro-mance with Putin may suggest Trump picked up on Putin's slogan in his earlier reign as president of Russia.

Under Putin, Russia has more than a foot in the door of the oil rich traditional Middle East. Add to this the extended Greater Middle East that includes the former Soviet "Stans" with their extensive oil reserves under the control of Russia that provide much of Russia's revenues. Now, President-elect Trump has nominated for Secretary of State ExxonMobil's CEO Rex Tillerson who has a substantial financial stake in the company's stock. Will this become a perfect storm to drown efforts at climate change that Trump has described as a Chinese hoax?

Whether it was Abe or someone else, hopefully we can rely upon the conclusion: "but you cannot fool all the people all the time.”

*See my 11:02 AM comment.

Shag from Brookline said...

Following my preceding comment on a "perfect storm" I read over at TomDispatch Michael T. Klare's "Drowning the World in Oil - Trump's Carbon-Obsessed Energy Policy and the Planetary Nightmare to Come" available at:

Klare describes a much more perfect storm than did I.

David Ricardo said...

You don't have to fool all the people all of the time. You just have to fool some of the people all of the time, which of course is what the past election just did. And with a captive media (see Politico's article on Jared buying good coverage on Sinclair), with gerrymandering, with a the distortion in the Senate from the two Senators for every state rule, and with voter suppression you only have to fool a minority of the voters all of the time.

Not a high hurdle given the typical Republican voter combined with a total lack of restraint on what Republicans will do to obtain and retain power.

Shag from Brookline said...

Over at the Balkinization Blog Jack Balkin has a 12/15/16 post titled: Democracy and Dysfunction - Now with even more Trump, concerning debate exchanges between him and Sandy Levinson going back to 2015 before Trump announced his candidacy. I had been following these exchanges at that blog as they have been extended. The exchanges are about to be published in a law review. Balkin pointed out there were final exchanges between him and Sandy post-Nov. 8th.

"All of the installments are now available on SSRN in an extended essay, Democracy and Dysfunction: An Exchange." And a link is provided. The Exchange runs 108 pages, well worth a read for those who have time. Since I had read earlier exchanges, I focused on Sandy's of 11/26/16 beginning on page 81 and Jack's 12/3/16 response which beings on page 88 and closes the Exchange. Both Sandy and Jack share similar views of Trump but differ on how to address his presidency under the Constitution. As usual the discussion between Sandy and Jack is civil.

David Ricardo said...

Looks very interesting, here is the link

and the Abstract

This essay, structured as a debate, discusses the current causes of political dysfunction in the United States.

Levinson argues that the causes of dysfunction can be traced to the Constitution itself. Remedying political dysfunction requires a new constitutional convention or a series of constitutional amendments, and Levinson explains why a program of constitutional reform is urgently required.

Balkin argues that the problem is best described as a problem of democratic representation, not dysfunction; it does not require either a constitutional amendment or a new constitutional convention. He argues that the federal government appears dysfunctional because the old Reagan regime is breaking down and we are in a transition to a new regime.

In a subsequent exchange, Levinson and Balkin reassess their arguments in light of the nomination and election of Donald Trump in 2016.