Thursday, February 13, 2020

Why Are Trump and the Republicans Showing Even Minimal Restraint?

by Neil H. Buchanan

With Republicans defending or ignoring Donald Trump's post-impeachment outrages -- firing employees who responded to subpoenas and testified in House impeachment hearings, intervening in Justice Department sentencing recommendations for his corrupt pal Roger Stone, and so on -- there is no longer any serious prospect of his party trying to limit (or even condemn) Trump's shameless vindictiveness.

I continue to believe that the impeachment process -- though doomed to "fail" in the literal sense of not resulting in Trump's conviction and removal from office -- was a success and a necessity.  Had the Democrats not responded to the whistleblower's report last Fall, the guardrails would have been removed even more quickly.  We would be on the same path, but Trump would have had a four-month head start on his renewed campaign to prove himself a king.  (It is also worth remembering, however, that Alexander Vindman and others paid a high but honorable price for this delay.)

In a new Verdict column today, I move to new terrain in my discussion of Trump's lawlessness.  Having argued seemingly forever that Trump will refuse to leave office even upon losing the 2020 election, I now am starting to explore what the world will be like after we lose the last bit of our innocence when Republicans support an internal coup by Trump.  What will it be like to live in a world where Trump is effectively President for Life?

In that Verdict column, which is the first of what will become a multi-part series (the length of which will depend only on my stamina and new examples of Trump's unlimited gall), I focus on the changes in whistleblower laws and civil service protections that Republicans will gladly enact as soon as possible.  Government employees and contractors will soon find themselves unprotected from political retaliation for doing their jobs in an apolitical manner, so they will either leave or start acting in the way that patronage hacks used to behave in the days of political machines.

Here, however, I want to think a bit more about why Trump and the Republicans are showing any restraint at all at this point.  They know that they are able -- and will ultimately be willing -- to do whatever is necessary to keep Trump happy, but they do seem still to worry about vulnerable Senate seats and all that.  But why should they care, when they know that Trump will simply declare not only that the election was rigged against him but that his Senate enablers all won their seats, too, no matter what the vote counters say?

To come at this question from a different angle, consider the discussion in yesterday's Dorf on Law column, where I likened Trump's arguments for absolute power to a game of three-card monte.

I used that analogy to evoke the idea of a con man telling some poor sap that he has always chosen the wrong card.  As Adam Schiff pointed out, Trump's argument in the Senate was that the Democrats should have gone to the courts, but his argument in the courts is that Democrats must rely on impeachment.  If one wants to make the analogy even more apt, we need only add that the third card is elections.  "You chose 'the courts,' my friend, but the answer is under this card here: Let the people decide.  Oh wait, you want to rely on fair elections?  Go to the courts or impeach me and try me in front of my friends in the Senate!  Find the money card.  Which one is it?"

Grifters use three-card monte or other scams, however, because they are for some reason unwilling simply to walk up to people and take their money from them.  Some movies depict "the ultimate grift" as stealing a person's money not only without the mark objecting but actually being thankful for being conned.  ("I'm so lucky that you allowed me to invest in this swampland!")  That, however, is a matter of personal satisfaction for a grifter who is bored by how easy it is to take advantage of other people and wants a challenge.

Trump, by contrast, never gets bored with taking advantage of people and becomes outraged when challenged.  He adores being adored, but he also shows obvious delight not in getting people to thank him for stealing from them but in kicking them when they are down -- and then insulting them for good measure.

Trump has never shown the slightest inclination toward, or even appreciation of, finesse or style when it comes to grabbing what he wants (from political power to money to women's private parts).  In Trump's zero-sum world (where the very concept of win-win is incomprehensible to him), winning is not good enough.  Humiliating the defeated opponent is part of the point.

One must ask, then, why Trump and the Republicans are still putting on at least the bare minimum amount of window dressing necessary to obscure their abandonment of the rule of law.

Why, for example, did Trump bother having the Justice Department overrule the career prosecutors in the Roger Stone case?  Why not simply issue another pardon?  Trump was abusing that power long before Senate Republicans gave him a lifetime all-you-can-corrupt free pass, so now would seem to be the time to throw off all pretense that he will use the pardon power -- which is not "absolute," by the way, even in the hands of a sane president -- sparingly?  Why is Paul Manafort not walking free at this very moment?

Two possible explanations come to mind.  First, it might be that Trump and his enablers do not quite feel that they are out of the woods yet.  For some reason, they find it worth their time to worry about "how it looks."  Why?  Perhaps, as I suggested in today's Verdict column, because they simply are not yet accustomed to absolute impunity.  Having spent their lives testing limits, their habits tell them always to cover all the angles.  Feeling one's oats is a process.

Second, maybe Trump is intervening in the Stone case indirectly rather than directly to prove unambiguously that he can also corrupt the entire judicial system.  The current brouhaha gives Trump an opportunity to attack the judge in the case, which allows him to convince his supporters that judges and courts are inherently biased against him/them.  The Stone case, then, might not merely be about reversing the "terribly unfair" treatment of a Trump crony.  It is an opportunity to inflict deeper and more permanent damage on the very notion of an independent judiciary.

Clearly, this goes beyond the Stone case.  One must wonder at this point how much longer Trump will even bother having his lawyers argue anything in court (on any subject).  He repeatedly says that -- because of a mythical version of Article II or some other excuse -- he has an "absolute right" to do whatever he wants.  For now, Trump's people still go through the motions.  At some point, that will not feel necessary to them.

And it is not merely a matter of neutering the courts.  Why let Congress stand in the way of an autocratic good time?  Why, for example, would Trump even submit a budget blueprint to the soon-to-be-irrelevant congressional committees, given that he seems to believe that he can simply spend as much public money as he wants on anything he wants?

Yes, yes, I know that parades of horribles are a favorite parlor game for law professors.  Here, however, every previous parade of horribles has marched past us.  No one thought that Republicans would actually fall back in line after each outrage, but they have.  They once said that it would be unacceptable for a president to seek foreign assistance in winning an election, insisting instead that Trump had never done so.  Trump then did that on live TV, and Republicans said that he had done nothing wrong.  (I have not checked, but I have no doubt that Senator Susan Collins said at the time that she was "troubled" by what Trump said.)

For completely understandable reasons, people continue to cling to the hope that something in "the system" is so robust and majestic that the worst cannot happen.  Yet it keeps happening, and the worst keeps getting worse.


Frank Willa said...

I think that you may have explained the "minimal restraint": "Having spent their lives testing limits, their habits tell them always to cover all the angles." I fear that this will all too quickly pass into unrestrained actions. So, looking at your Verdict Comment with this one, I will refer to my view posted there.
But, would add there is no stopping an exec order to reduce SS, and or Medicare/Medicaid payments or for full border wall funding. I recall there were posts that discussed the rationale for spending beyond the debt limit, if need that is all that T would need to hear- on second thought he already thinks the country is his sole proprietorship and anything he wants...goes.
To wrap up my thoughts/views, as this is just about all I can muster for today, I posit the question: Should we be surprised to see in the very near future a "ground breaking ceremony for the new T tower in Moscow"?

Unknown said...

Get your passports up to date folks, and try to define your best choice of country for asylum.

Patrick S. O'Donnell said...

Hard as it may be for some to appreciate, John Rawls, the quintessential political philosopher of Liberalism in our time (in a line from J.S. Mill to John Dewey...) understood the vulnerabilities of capitalist constitutional democracy to (kleptoctratic) plutocracy and the organized political interests of the rich and powerful ... just one reason he came to endorse Liberal democratic socialism!

Patrick S. O'Donnell said...

I should have mentioned that Rawls, the “reticent socialist” (William A. Edmundson), endorsed socialism by implication (implicative socialism, so to speak), not by proclamation. In other words, his arguments, which posited “property-owning democracy” and “liberal socialism” as two ideal-typical regimes capable of realizing “justice in fairness” to an extent that trumps the constitutional democratic virtues of welfare-state capitalism, ended up demonstrating the comparative weakness of property-owning democracy vis-à-vis liberal (democratic) socialism (jointly assessed by a number of fundamental and subsidiary complementary criteria). See Edmundson’s book for what I take to be a sound and persuasive argument on this score.

Joe said...

The "three card monte" reference reminds me of that time where Impeachment Manager Nadler provided the final remarks (though Schiff tried to stop him) at the end of the Q&A portion and made a reference to the Republicans/Trump side playing a three card monte game. As to the question, I take it is various reasons, as suggested.

Neil H. Buchanan said...

I had meant to mention this on the comments board a few weeks ago, but I can say now that I don't read the comments board on my Verdict columns. I don't even glance at it. Too much hostility. Here on Dorf on Law, I generally read all comments (with the exception of those from commenters -- none present here -- who have made it clear over time that they do not have anything worthwhile to say). So if any readers do want to make a comment that I'll read, this is the place to post it.

Frank Willa said...

Professor, thank you for clarifying your practice with regard to Verdict. It seems presumptuous to think that you are referring to my reference above, or need to see my comment there. I would say that the gist of it is posted here. I am taken aback by events- Impeachment Sham- and continuing abuses; and so am looking for the "stamina" to continue. However, at this time where I am trying to regain my footing and not be a victim of T's strategy of wearing everyone down (endless reversals and lies delivered in a forceful manner) rather than winning on the merits; I thought of a small piece of pragmatic 'wisdom' from a movie of some years ago.
..."The only real failure is the failure to try. And the measure of success is how we cope with disappointment. As we always must."....(The Best Exotic Marigold Hotel, spoken by the character Evelyn near the end of the movie)
So, I think that your commentaries about taking the perspective to listen to some 'old time rock-n-roll' and enjoy relaxing with a beverage is my tonic for now.