The law may simply not be strong enough to bring down a president who defies it with the aid of a complicit Congress. Politics, backed by law, is the fulcrum required to expel a crooked, yet determined, executive. Without it, impeachment or resignation are a distant reach.
Every presidential election is routinely called “the most important election” in history, producing sighs and eye rolls from political-science types. But if you’re fond of democracy in America, the 2018 midterm election makes a stronger case for a superlative label than most presidential elections.
It appears increasingly clear that the Republican majorities in Congress would pose no serious obstacle to presidential lawlessness. True, committees in the House and Senate are looking into Russian sabotage, in the form of support for candidate Donald Trump, during the 2016 campaign. But it’s unclear if Republicans on those committees are willing to blame Russia for wrongdoing, let alone Trump.
As political scientist Jacob T. Levy pointed out at the Niskanen Center blog, in his brief presidential tenure Trump has already “defied, ignored, or shredded the whole previous system of norms about avoiding financial conflicts of interest and the use of public office for private enrichment.”
Trump has openly signaled that his Washington hotel and Palm Beach club, where he doubled the fee to $200,000 after his election, thereby putting an explicit dollar value on presidential access, are political souks. “He has, in short, drawn a very clear map to foreign interests about how to enrich him and his family and how to gain direct access to him in the process,” Levy wrote.
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Issuing the equivalent of equity shares in a presidency has historically been frowned upon. But Republicans in Congress have taken no action. As Levy said, “Executive authoritarianism and lawlessness can be hemmed in and checked but not fully constrained by courts, the criminal law, or the written Constitution.” In other words, Trump will see your Madisonian mumbo-jumbo and raise you an Electoral College.
This has obvious implications for the criminal investigation by special prosecutor Robert Mueller. In the wake of the indictment of Trump’s campaign chairman, Paul Manafort, and a plea deal signed by former Trump White House national security adviser Michael Flynn, along with the exposure of a series of lies (which keep coming) by senior White House aides and Trump himself about Flynn’s discussions with a Russian diplomat, the evidence of a conspiracy looks to be mounting.
Republicans in Congress, however, appear mostly determined to see and hear no evil. Senate Judiciary Committee chairman Orrin Hatch last week called Trump one of the best of the seven presidents he has served under. Likewise, conservative media organizations, from Fox News to Breitbart, have thrown a protective cordon around Trump. This only increases the pressure on Republican office holders to do likewise. Meanwhile, the Justice Department, which employs Mueller and his team, continues to be run by Attorney General Jeff Sessions, whose commitment to uncovering the truth, let alone acting on it, appears sketchy at best.
The law may simply not be strong enough to bring down a president who defies it with the aid of a complicit Congress. Politics, backed by law, is the fulcrum required to expel a crooked, yet determined, executive. Without it, impeachment or resignation are a distant reach. Even a majority of public opinion agreeing about the nature of wrongdoing, and penalizing Trump in 2020, may depend on the composition of Congress after the midterm elections.
In The Washington Post, Dan Drezner says 2020 will be the bell that tolls for American democracy, either sending it spiraling with Trump’s re-election or announcing its resurgence. But it’s taken less than a year for lies to become standardized and bogus counter-narratives operationalized. Imagine if criminal charges were to hang over Trump’s head for the next two years, while the political system grows even more tattered and the legal system is jammed.
If Mueller targets Trump, there is dwindling reason to believe that the Republican coalition will accommodate his evidence. Mueller would be subjected to daily character assassination, his evidence viciously distorted, and his entire investigation dismissed as the product of a nefarious “deep state” too shadowy to identify.
Will the Business Roundtable rise up against a president who supports corporate tax cuts? American CEOs, few of whom would tolerate Trump as a business partner, have shown no interest in defending rule of law.
And what new moral affront could persuade Christian conservatives to abandon a man they already know to be an incurable liar, shameless adulterer and flouter of most everything ever claimed as Christian values? A sizable segment of Republican voters will deny even the most incontrovertible evidence of Trump wrongdoing, and they will demand that Republicans not only inhabit their alternative universe, but defend it to the death. Conservative jurists — John Roberts, the chief justice of the Supreme Court, above all — will be similarly pressured.
Holding Trump accountable legally, even politically, may not be possible even with Democratic control of the House or Senate and the influence a Congressional majority provides. But it’s even more unlikely without it. And four years is a long time to live above the law.