Friday, July 12, 2019

Constitutional Crisis Watch: Any Reasons for Optimism?

by Neil H. Buchanan

As the unraveling of constitutional norms continues apace under Donald Trump's unfocused gaze, the toadying by Trump's Republican enablers has caused me to wonder whether there is anything that would be too much for them.  In particular, frequent readers of this blog and of my columns on Verdict know that I am worried to the point of panic about whether Trump will ever leave office peacefully.

Although there is no reason to take Trump's former private lawyer/fixer Michael Cohen's legal views seriously, I do think that he had no reason to simply fabricate the idea (based on his observations of Trump, not on any legal theory) that if Trump "loses the election in 2020, ... there will never be a peaceful transition of power."  Certainly, everything that we have seen from Trump indicates that he would not hesitate to try to stay in the White House at any cost; and what we have seen from the Republicans to date suggests that, if they do have a limit to their enabling of Trump, we have not approached that limit yet.

Even so, in a search for even the thinnest of optimistic reeds, I have been trying to find ways to see a way forward in which Trump loses and leaves office without (too much of) a fuss.  Thus, three weeks ago, I tried my very best to describe a way in which Republicans might be "working Trump" behind the scenes, derailing his worst impulses (for example, forcing him to drop his efforts to put Stephen Moore and Herman Cain on the Federal Reserve Board), thus allowing us to think that perhaps they are exercising more control than is apparent to the naked eye.

Today, I offer an update on these matters, responding specifically to one very bad argument for optimism and one possibly good one.  In an environment where all can seem lost, even a little bit of ambiguously good news is welcome, as I will argue below.

The truly bad argument -- indeed, the complete lack of an argument -- arrived on June 30 in the form of an op-ed in The Washington Post.  The author, a professor of history, proved himself to be the ultimate academic naif, saying that because every president thus far has transferred power peacefully, we can be sure that Trump will do so as well.  Because, you know, things that never happened in the past will never, ever happen in the future.

(Note: Skeptical and/or fair-minded readers might reasonably suspect that my characterization of the history professor’s op-ed is an exaggeration.  I invite everyone to read it for themselves.  Seriously, read it.  It is truly vapid.)

Actually, the non-argument is even sillier than that, paradoxically because the author offers what he apparently thinks is a reason to believe that the thing that has never happened cannot happen at all.  His logic, such as it is, is that George Washington set a glorious precedent by refusing to become a dictator, which made us all better people, so we are safe forevermore.

Those musings were actually a riff on something that Beto O'Rourke had said during the first set of Democratic presidential debates.  There, O'Rourke quite pointedly referred to a famous painting of Washington resigning his commission to the Continental Congress to raise the question of whether Trump would follow the honorable, small-r republican path of eschewing dictatorship.

Not to worry, says the historian in his op-ed, because "on Dec. 23, 1783, Washington averted any possibility of military dictatorship or a return to monarchy by surrendering his commission to Congress in Annapolis."  And as far as it goes, that is an accurate statement of what Washington did at the time.  That is, had Washington not resigned his commission, he would have given his contemporaries reason to worry that something bad was afoot.

But why should we be confident that there is still no possibility of a dictatorship?  "Americans have no need to worry, thanks to George Washington.  He embraced the control of civilian government over his martial authority. He remained steadfast to this principle, even suppressing a potential coup against Congress by his officers by invoking the words of the Declaration of Independence and appealing to their 'own sacred honor.'"

One might notice that this still has no predictive power for today's situation.  Even so, the author assures us that "America is in no danger of a true dictator or monarch or military strongman. Our sense of liberty and deference to civilian authority and laws have been so institutionalized in the American character that anyone who tried it would meet insurmountable resistance."  He goes on to note various historical examples of possible constitutional collapse that ended well, most recently the transition of power from Bill Clinton to George W. Bush.

Again, however, there is no argument here other than that this horrible thing has never happened, which the author somehow is certain reflects something "so institutionalized in the national character" that resistance would be "insurmountable."

Actually, the only thing even close to a reason for some confidence that Trump might ultimately be thwarted comes from the author's comment that "[e]ven the military, which the Founders once feared as a tool of dictatorship, takes an oath to uphold the Constitution, not a personal pledge to a president. In our system, it would be a bulwark against such a move."

Indeed, those of us who worry about Trump's dictatorial ambitions actually hope that the military would oust him.  If that became necessary, however, that would be because the constitutional transition of power had broken down, that is, Trump would have already successfully steamrolled Congress and the Courts, and the generals would then have to stage a coup.  That is not a reason to think that we could never reach that point but rather that the military might give us a non-Trump future after a constitutional crisis.  But it would still be a non-peaceful transition of power.

At most, we might say that knowing that the military is unlikely to allow Trump to seize power extra-constitutionally would discourage Trump from trying in the first place.  But has Trump shown any sense that he is not willing to test limits, especially given that he thinks he has the military (and the police, and biker gangs) on his side?

I am not saying that this is not a nice thing to believe.  Indeed, it is a lovely version of our belief that our system is fundamentally about laws and not men, such that it is impossible for anything to undermine it.  Even if these virtues are "institutionalized in the American character," however, actual people have to mount the insurmountable resistance.  Will Republicans -- who will hold the power to stop Trump if he tries to stage a post-election internal coup -- do so?

Although the writer of the "it can never happen because it hasn't happened" op-ed offers no reasons for us to be confident, another Post op-ed at least offers a hint.  Harry Litman is a former federal prosecutor and deputy assistant attorney general who has emerged as one of the best legal columnists in a major newspaper.  (Linda Greenhouse continues to stand alone, of course, but Litman is plenty impressive.)  In this morning's paper, Litman pointed out that we might have just this week averted a constitutional crisis.

The potential crisis arose from Trump's ordering the Justice Department to find a way around the recent Supreme Court decision preventing a citizenship question from being added to the 2020 census.  Trump and Attorney General William Barr had been making noises that suggested quite plausibly that the Administration might simply defy the Court.  Because Barr said that he agreed with Trump "that the Supreme Court decision was wrong," they were trying to find a way to do what they wanted to do, notwithstanding Marbury and our history of judicial supremacy in settling legal disputes.

Litman points out that Trump and Barr backed off from a course of action that would have truly put us in uncharted territory.  That they changed their minds is a great relief, as Litman persuasively argues.  Yet Litman does not say, because he cannot pretend to know, why this happened.  For that matter, there is every possibility that Trump could change his mind yet again and plunge us into a crisis after all.

Because we do not know what was happening behind closed doors, we are left to speculate about why Trump did not bulldoze his way forward.  And that uncertainty allows me to note that this outcome is at least consistent with my hope that Republicans are putting rule-of-law limits on Trump, even if they do not admit to doing so in public (perhaps out of fear of their own voters).  This recent incident most definitely does not prove that my optimistic hypothesis is true, but again, it is another data point plausibly in its favor.

Of course, even if that were all true, it could end up meaning nothing at all, because any behind-the-scenes Republican restraints on Trump could merely be a matter of keeping their powder dry should they decide to blow up the system later.  After all, they still hope that they might win the 2020 elections, so why let Trump make the odds even worse than they already are -- with Trump celebrating his highest approval rating yet ... 44%?!

We thus do not know what might yet happen.  At least Litman's story tells us something new, which is that we were very recently on the cusp of a constitutional cataclysm.  Something stopped Trump, even though everyone knew that he would look like a Loser by backing off.  That is good, and it might be enough to keep us on track in the future.  I am still not betting on it, but I continue to be desperate for good news.  This is as good as it gets, I am sorry to say.

5 comments:

Joe said...

Any relation to Leah Litman?

TruePath said...

Why would congress or the courts go along with Trump? He isn't the kind of leader who inspires any kind of personal loyalty. Moreover, everyone involved would realize that supporting Trump to remain in office despite a contrary election would have the implicit effect of installing him as an indefinite dictator. That would rob the politicians of their personal ambition to become president and both congress and the justices of a significant fraction of the power they wield.

Certainly the agenda of the supreme court justices seems to have very little to do with Trump's goals and congressmen are only loyal to the Trump whitehouse because they feel they need his cooperation to pass laws and don't want to upset his base. Making Trump a dictator places Trump as the biggest barrier to their own power, influence and interests and acknowledging his defeat doesn't have the same negative consequences as setting themselves against his policies.

In short Trump isn't the kind of leader who poses a real danger here. It's the charismatic leader who inspires personal loyalty and starts with the support of a large supermajority, e.g. Chavez.

TruePath said...

Also, Trump's inability to inspire personal loyalty and his administration's inability to plan means that there is a massive coordination problem with refusing to leave the whitehouse. Everyone who might choose to support Trump (from the secret service to executive officials) has to worry he'll back down and leave anyway and they then risk serious consequences and, depending on what actions they take, potentially even prosecution. The safe option for every single one is to shut up and proceed along the default constitutional path since that's what they expect many others to do.

Joe said...

See also, a post by Sandy Levinson at Balkanization Blog.

Marty Lederman said...

It wouldn't have been a cataclysm had Ross tried to add the citizenship question again: It would have been litigated, and John Roberts would have decided it. They didn't plan to disobey any injunction.

As for why they blinked, I think it was one or both of two things. First, this:

https://balkin.blogspot.com/2019/07/census-citizenship-question-re-do-part.html

And second, Judge Hazel ruled on Wednesday that he'd allow the Federal Programs lawyers to withdraw only if they would at least advise the new DOJ lawyers to help them get up to speed in the case. I wouldn't be surprised if there was revolt within FedPro, refusing even to play that modest role in litigation that they thought was indefensible.