These Will Still Be Trying Times for Our Democracy
Back in February, a piece, Trial Balloon for a Coup made the rounds on blue Facebook. The essence of the piece was that the way the travel ban was rolled out—through a gutted state department, around an objecting DHS, and skirting the orders of the court—was Trump’s team trying to test the waters. I dissented, suggesting it was much more likely blundering by people who did not understand the limits and finesse of executive power. As the courts have continuously struck down and rolled back the ban and the administration has ceded to their authority, I have felt vindicated. The Trump Administration is testing and searching, but so far within Constitutional limits. And they’ve not been very good at it.
The newest round of breathless panic is about how the final months of the Trump administration might play out. And I do mean it: final months. The panic in the administration as Mueller moves in on Trump’s finances should tell that he is hiding something there. The publicly available information is starting to point to a racketeering operation that ties in with Russian efforts to compromise our democracy. We may not need to prove espionage to impeach the President; money laundering could well do the trick.
The President is enormously powerful and will have a few tools at his disposal. First, he could fire Mueller. There are some niceties here. Whether or not Trump can literally fire Mueller or if he has to find someone in the chain of command to do it for him has been debated. If Nixon’s precedent is anything to go on, he may have to fire Deputy Attorneys General until someone is willing to carry out the order to fire Mueller. The so-called Saturday Night Massacre touched off a firestorm that ultimately undid Nixon. Trump may be convinced not to follow that precedent.
Beyond a basic level of immunity and privilege (designed to keep more baseless
“scandals” from consuming the Executive), he may also be able to pardon the conspiracy. There is a vigorous legal debate about whether or not SCOTUS will uphold those pardons. First, there is good reason to think the President cannot pardon himself, though the matter is far from settled. If he cannot, then pardoning co-conspirators may also not be allowed because it would undermine the investigation into the President and effectively amount to a self-pardon. It would be an incredible SCOTUS case, to say the least. At any rate, being pardoned waives the right to claim the 5th Amendment (as self-incrimination would then be impossible). We could fall into an infinite loop of contempt charges and Presidential pardons, but its worth pausing here to consider the political ramifications of this.
This blog does not offer much aid or quarter to Republicans in Congress. Members of Congress are a spineless, self-preserving lot and this is a liberal outfit besides. But Republicans have been nominally correct on two fronts. First, there has been a paucity of conclusive evidence. Aside from the Donald Trump Jr. emails—and that’s a huge aside—there has mostly been innuendo, leaks, and speculation. Second, while it is technically their job to check the executive, Mueller is running an internal investigation. Passing the buck is not ideal, but its not in any way contrary to the way the Constitution frames this kind of problem. The public position of most Republicans in Congress has been to defer to Mueller and point out they’ve conveniently not seen much evidence.
Liberals were kidding themselves if they expected Representatives to rush to the steps of the Capitol to announce they were abandoning their party’s President before 6 months were up on a single admission by the President’s son. Conservatives are delusional if they think their party isn’t having private meetings about how they are going to close ranks when mostly smoke becomes mostly fire. Firing Mueller or issuing pardons would remove the veneer of plausible deniability and create a media sensation eclipsing the Comey firing. Committee hearings into Russia’s tampering of our election got more serious after that; imagine what a Mueller firing will do. Members of Congress saying they are “very concerned” may be a joke, but they are leaving themselves an escape hatch. Either of these actions by the President may well force them to finally take it.
What if I’m wrong? What if they duck for more cover? The crisis would be real, but the incentives to use our institutions to check the Executive would grow commensurately. Firing Mueller will almost certainly require a major reorganizing of the Department of Justice, while pardons would be tantamount to an admission of guilt. The firestorm that would follow would consume Washington, scuttle the domestic agenda, and fundamentally alter the political landscape more than even Comey’s firing. I predict that the public outcry would be withering, and that a critical mass of Republicans would defect against the President. But again, if I’m wrong, that wouldn’t be the worst of it. There will be a few days grace period for Senators and Representatives to cobble together a response. If it was not forthcoming or woefully insufficient, the institutional coup that would follow would be profound and undercut any authoritarian designs Trump harbored.
As a matter of public record, the Intelligence Community has been on this case for years. While they were not ready to pull the trigger in the lead up to the election—and Obama stopped them from the more measured plan they hatched—it has long been known they have damning evidence against Trump and his associates. If the first three branches refuse to see what is plainly recorded in the dark recesses of the NSA, there is a final, informal branch of government they can appeal to. If the Republican Party proves too paralyzed to defend our nation, the IC will not so much as leak as hemorrhage. It will be unsparing. Every Senator and Representative with tangential ties to Russia or the RICO case will find themselves the subject of a widening “leaking scandal”. The exact contours of the FARA case will become the subject of breathless NYT and WaPo reporting. Senators can scoff at WaPo’s masthead, but this Presidency may well die in the light.
This final recourse will do incalculable damage to the political system, but it will not be an authoritarian crisis. We have every reason to believe the evidence was collected legally for national security purposes, and only sought after foreign adversaries mentioned this plan. For good reason that information is meted out through the politically accountable parts of our government, but the system was designed on the premise that our Congress would defend the Constitution from plain threats. If there is ever a time for leaks, it is as the President bullies Congress into accepting his collaboration with a foreign adversary.
To clamp down on this, Congress, the Press, and the rank-and-file officers of the Executive Branch would have to accept a clamp-down on rights. Could attorneys at the DOJ suddenly prosecute periodicals that published leaks? The DOJ would stand empty before most did that. Will SCOTUS acquiesce to a suspension of civil liberties? Could Trump shut down the press? It hardly warrants consideration. Would Congress stand by him through an assault on the First Amendment? Stuff of fiction! Would the Army back a power grab if he tried to deputize them? There is a great miniseries in that, but it should be relegated to speculative television. The machinery of authoritarianism is not in place, nor will it materialize in the next year.
Appointing Mueller created a brittle covenant with the GOP in Congress. So long as he is investigating, they will defer to him and turn over as few stones as they can get away with. It is not praiseworthy, but it is also only support at the most tacit level. They get stability and keep their options open. They can credibly say that their duty to check the President has been outsourced. If Trump removes Mueller or pardons the conspiracy, that covenant is broken. Congress will abandon him to save their own skins and, on the off the off chance I’m wrong, the IC will bring to light what our “leaders” have been too cowardly to show us.
The coming crisis—and I do think its all but upon us—will shake our Democracy to its foundations and re-write politics for a generation. But it will be the desperate final acts of incompetent, self-serving blow-hard, not the calculated authoritarian power grab that liberals fear. Trump’s extraordinary power and Congress’s vile timidness means that any patriotic should be ready to defend those foundations. But, having exhausted all other options, Congress will do the right thing if Mueller is removed.
Proof of Burden 