by Neil H. Buchanan
One of the metaphors that occasionally tips into overuse in US political discourse is the hair-on-fire formulation, as in, "I was running around with my hair on fire in 2003, telling everyone that the intel on weapons of mass destruction was wrong!" The phrase certainly paints a picture, but as Orwell warned, even effective imagery can die from excessive exposure.
Although that phrase is not currently suffering from overwork, I will nonetheless merely suggest here that I have been rushing about with my follicles aflame for about three years now, warning of the threat to constitutional democracy that Donald Trump and the current version of the Republican Party represent. My current stint in the UK and Europe has involved delivering a series of lectures that expand on the point that I sketched out in my February 5 Dorf on Law column, "Is the Rule of Law More Important Than Breathing?"
My argument is that we have reached a point in time where we can no longer imagine that the institutions of our liberal democratic order are essentially self-enforcing. They never were, of course, but when social and political norms allow everyone to take for granted that there are many things that simply are not done, it is easy to lapse into the comforting notion that no threat is truly existential. Here, I will explain why this one is.
My motivation in thinking about this issue again, and in this particular way, is a conversation that I had recently with two Americans in the U.K. Although both of them are highly critical of Trump, they were both simply unmoved by my warnings that this could be the end of constitutional democracy in the U.S.-- so unmoved, in fact, that they expressed amusement at my hair-on-fireness.
During that conversation, the comment that struck me as the most unexpected was one person's assertion that "Trump doesn't really like being president, anyway," so if he does manage to win next year's election (fairly or not), "I think he might even resign immediately afterward, having proved that he can do it."
This might or might not be wrong -- it's a prediction, after all, and it's not a claim about something that is physically impossible, like "Humans will be able to breathe in outer space without assistance within five years," so it could happen -- but it strikes me as utterly inconsistent with what we know about Trump and his lust for power (to say nothing about his fear of being prosecuted once he leaves office and no longer has a tendentious legal memo to protect him).
In any event, this assertion and others in that conversation were an inspiration (if that is the right word) for me to think about all of the various ways in which even well meaning and informed people have been convincing themselves that Trump is not a life-or-death threat to the Constitution and the rule of law.
Even though I was quickly terrified by Trump's obvious threats to political stability during his campaign -- his incitements to violence, his attack on a "Mexican" judge who ruled against him, his thuggishness toward the press, and on and on -- I was one of the people who was at various points taken by the idea that Trump might not go through with it all.
At every stage, it was easy to say, "Well, he doesn't really care. He'll soon become bored/frustrated/angry/distracted and go off to do something else." When he was dominating the debate stage and being fawned over by people like "Morning Joe" (How that relationship soon turned!), it was fun for him, but the thought was that as soon as he lost his first primary, he would cry foul and walk away.
Each step saw the same response. "He's proved that he can win a primary. That's all he cared about." "He won the primaries, so now he'll punk everyone by saying that he never wanted it all along." "He beat back the NeverTrumpers and gave his acceptance speech at the convention, so now he'll quit and hand it over to Pence." "He himself seems surprised that he won the Electoral College, so it's now real to him, and he'll hate the idea." "Now that he's taken the oath of office, he's proved his point."
Again, none of those predictions was utterly implausible. Indeed, Trump seemed to be engaging in so much self-destructive behavior (attacking the parents of a war hero, for example) that it was easy to imagine that he was affirmatively trying to lose or (later) to be impeached.
In any event, this discussion misses the larger point, because my concern is that the U.S. political system is under threat by the cult of Trump. It is true that Trump himself could make this all moot by quitting and walking away, but that seems so unlikely that we had better think about what to do if he continues to try to abuse his power.
Indeed, the don't-worry-be-happy response to Trump's rise includes the broader claim that our institutions are stronger than people like me imagine. If he truly, truly goes beyond the pale, he will be stopped. Stop worrying so much, the thinking goes, we've got this.
Part of my reaction to such reassurances is based on an application of the precautionary principle, by which I mean preparing for the worst even while hoping for the best. Put differently, the consequences are asymmetric, because if I am wrong and things turn out fine, all we will have done is spent time trying to reinforce our political institutions to preserve the rule of law, whereas if I am right but we have not adequately reinforced our constitutional democracy, then there will be no turning back from the new world of sham democracy and rule by Trumpists.
Why am I worried that the U.S. system is looking to be inadequate to the challenge that Trump poses? After all, he has an epic losing record in the courts, and even his own Administration sometimes works at cross-purposes with him (for example, announcing that foreign aid is helping reduce migration flows even as Trump wants to cut that aid). The voters put Democrats in charge in the House, and that puts a huge barrier in front of Trump and his worst impulses.
Moreover, we cannot say for sure that Republicans would stick with Trump even if he did something truly outrageous and unconstitutional. Maybe they are just waiting for their moment, hoping that it will never come but prepared to be patriots if it turns out that their guy is as bad as people like me say he is.
Again, there is no way to prove any of that wrong, but it seems wise to take precautions and assume (or at least try to prevent) the worst. We do know that even the Ninth Circuit of the U.S. Court of Appeals is no longer "liberal," thanks to Mitch McConnell and the entire Republican caucus in the Senate that blocked dozens of Obama's judicial nominees and are now rubberstamping a generation of extremists across the entire third branch. And even when Anthony Kennedy was still on the Supreme Court, he and his arch-conservative colleagues were willing to ignore reality and approve Trump's Muslim ban.
Why would we be so confident that the courts will continue to rule against Trump? The press is now even describing Democrats' discussions about rebalancing the courts (should they ever get the chance) as "court packing," which accepts the new baseline that McConnell et al. have created as if it is normal and right.
More broadly, every outrageous step that Trump has taken has been followed by a familiar pattern, with people saying first that he has finally gone too far ("... very fine people on both sides" in Charlottesville) and that Republicans will now firmly and finally abandon him, followed by awkward silence and then walk-backs by the few Republicans who took a stand (Acccess Hollywood tape), and then acceptance that "it plays well with his base" and so Republicans are afraid of losing primary challenges (Mark Sanford in South Carolina).
Trump can now muse out loud about having the military, the police, and motorcycle gangs enforce what amounts to martial law, and people shrug and say that that could never happen. But it can if everyone treats it as non-news when the president puts the idea out there without being condemned in a bipartisan manner.
What has been the response to Trump's violation of the separation of powers by issuing his emergency declaration? Republicans said in advance that it was a terrible idea, but then they said it was fine after he did it. Yes, a dozen Republicans in the Senate actually voted against it, which was something of a political risk, but it was ultimately not a real constraint on Trump because they all knew that his veto would never be overridden.
And what was the argument from the so-called constitutional conservatives? If it is actually unconstitutional, they said, then the courts will stop him. The courts, I predict, will say that Congress was empowered to stop him, and because it did not override his veto, the political process has spoken. Why would, say, Kavanaugh rule otherwise?
Again, this is all still a long way from my most apocalyptic worry, which is that Trump will not accept the results of the 2020 election and will simply refuse to leave. How? He could simply announce that there was massive voter fraud that rigged the election against him (and his fellow losing Republicans), then declare a national emergency that invalidates the election results "until we can have a fair election."
Which brings us back to my amused colleagues in the conversation that I described above. One asked: "Why would Republicans back him up after he loses? He'll be of no use to them anymore." I have argued here on Dorf on Law that he is of no use to them now, at least not in a comparative sense, because Mike Pence or any Republican would appoint the same judges and sign the same tax cuts and regulatory rollbacks that Trump is willing to support. Moreover, he is a drag on their collective political prospects (see 2018 midterms), yet they stick with him.
And why would a Republican in a lame-duck session of Congress in 2020 stand in Trump's way? Many of them will have lost their re-election bids, giving them a direct personal incentive to agree that the election was corrupt. The rest have no reason to annoy their base voters or to agree to anything that would put, say, Kamala Harris in the White House and Chuck Schumer in the Majority Leader's office in the Senate.
But surely these people are ultimately Americans first, patriots who understand that the ends do not justify the means, at least in a situation so extreme. Right?
The tough-on-Russia party now looks the other way when presented with uncontroverted evidence that Russia hacked our elections to put Trump in office. The party that called Obama a would-be dictator now does nothing while Trump writes Congress out of the Constitution. The party that impeached Bill Clinton over a lie in a civil deposition does nothing about Trump's corruption and obstruction of justice.
Again, maybe they are merely waiting for their moment finally to stand up and say, "No more!" Maybe. And maybe more people should be running around as if their hair were on fire.