The System Failed the Test of Trump
The story
of recent years is of institutions that were unable to constrain the
presidency.
May 21, 2020
Staff writer at The Atlantic
Have you ever known
anyone swindled by a scam? It’s remarkable how determined they remain to defend
the swindler, and for how long—and how they try to shift the blame to those who
tried to warn them of the swindle. The pain of being seen as a fool hurts more
than the loss of money; it’s more important to protect the ego against
indignity than to visit justice upon the perpetrator. We human beings so often
prefer a lie that affirms us to a truth that challenges us.
Americans are living
now through the worst pandemic in a century and the severest economic crisis
since the Great Depression. At every turn, President Donald Trump has made the
crises worse. Had somebody else been president in December 2019—Hillary Clinton,
Jeb Bush—fewer Americans would have met untimely deaths; fewer Americans would
now be unemployed; fewer businesses would be heading toward bankruptcy.
On the eve of the
2016 election, a Pulitzer Prize–winning columnist opined in The Washington Post: “If Trump
wins, he’ll be held more or less in check by the House and Senate, because
that’s the way our system of government is set up. Not even Republicans are
eager to follow Trump’s lead.”
I cite that
column—published under the headline “Calm Down. We’ll Be Fine No Matter Who
Wins”—not to single it out, but precisely because it was so un-singular.
The keepers of the institutions could imagine Trump testing the system. They
could not imagine the system failing the test.
And yet fail it did.
The story of the Trump years is a story of institutions that failed. The
Department of Justice failed. The inspectors general failed. Congressional
oversight failed. The national-security establishment failed. The courts
failed. Trump has done things that no previous American president would ever
have dared, that no previous president sank low enough even to imagine.
Sometimes he was stopped, more often not. But whether stopped or not in any
particular case, he has never ceased pressing ahead to do even worse the next
time.
The only check
remaining is that of the 2020 ballot box. Not Trump alone, but the great
political party behind him, is working to ensure that election is as unfree and
unfair as possible. In that effort, they have mobilized the active or tacit support
of millions of Americans.
This post was excerpted from Frum’s recent
book.
Trump is a swindler,
but the Trumpocalypse of 2020 represents something a lot bigger and a lot worse
than a swindle. In the fall of 2019, a nonpartisan research organization
studied the distinctive attitudes of Republicans who watched Fox News as their
primary source of information. Among that group, 55 percent said there was
virtually nothing President Trump could do that would change their minds about
supporting him. Fox News and the Facebook feed have become for many Americans
friends more intimate and trusted than family or neighbors. The validation of
their prejudices by television and Facebook is a validation of themselves.
And so, for the sake
of flag and faith, millions of decent conservative Americans countenanced
scandals, wrongs, disloyalty, and crime. Trump’s followers live in an isolated
knowledge community that has developed its own situational ethics. They wanted
to lock up Hillary Clinton for sending and receiving emails on a personal
server, not caring even slightly when Ivanka Trump did the exact same thing or
when Trump outright blabbed to the Russian foreign minister secrets much more
vital than anything Clinton could possibly have risked. They plunged into the
QAnon fantasy of a wise and good Trump poised to crush a global ring of child
molesters, in order to avoid the reality of a malignant Trump who by his own
admission had preyed upon teenage beauty-pageant contestants.
And if Trump’s
supporters are not interested in holding him to account, most of the
institutions of American government haven’t proved capable of doing so either.
The Trump years demonstrated the very great extent to which presidential
cooperation with the law is voluntary, especially if he retains a loyal
attorney general, and a sufficient blocking vote in Congress.
It’s illegal for
federal employees to overspend on travel to benefit themselves or their
colleagues. In 2012, a senior executive at the General Services Administration
was sentenced to three months in prison, three
months under house arrest, and three years’ parole for taking personal side
jaunts and overspending on lavish retreats for his staff.
Yet when Vice
President Pence visited Ireland in 2019, he wasted hundreds of thousands of
taxpayer dollars by staying not in Dublin, the site of his meetings, but at
Trump’s golf course 180 miles away, on the opposite coast of the island. Pence
tried to make things right by paying for his own room, but that only added a
direct personal payoff to Trump to the many other ethical breaches of the trip.
Any other federal employee who wasted travel expenses in order to direct money
to his supervisor would find himself in serious trouble: facing at least a
firing, possibly prison time if the behavior was egregious enough. But not
Pence. Not the Trump staffers who meet every Tuesday evening with lobbyists at
the Trump hotel in Washington, D.C. In the George
W. Bush White House, where I once worked, you showed you belonged by wearing
cowboy boots; in the Trump White House, by repaying some of your salary back
into the boss’s pockets.
It is illegal for
government employees to use their positions to engage in certain political
activities. They are especially forbidden to engage directly in election
campaigns while on the government payroll. The presidential counselor Kellyanne
Conway appeared to violate this law—the Hatch Act—so persistently and
flagrantly that she triggered an internal investigation. In June 2019, the
investigation reported that indeed she had broken the law repeatedly and
intentionally.
If Conway had been a
career government employee, she would have been dismissed from her position
immediately. By courtesy, however, the enforcement of the Hatch Act upon
political appointees is left to the president directly. The investigation,
therefore, concluded with a recommendation to the president, rather than a
direct order, that Conway be subject to “appropriate disciplinary action”: in
other words, that she be fired.
Trump disregarded the
recommendation. Conway mocked the finding to reporters. As one
journalist read the recommendation to her, she replied: “Blah, blah, blah. If
you’re trying to silence me through the Hatch Act, it’s not going to work. Let
me know when the jail sentence starts.”
At some point in the
2020 campaign, some federal worker will get excited about the election and post
something intemperate on Facebook or do something else to infringe the 1939
law. She will be disciplined—fired if the offense is egregious or visible
enough—and she will know that this law that applies to her was ignored in the
much worse case of a higher-ranked person. Or perhaps in 2020, the law will be
extra-scrupulously obeyed by federal workers, precisely because they already
know that there is one law for Trump cronies and a different law for everybody
else.
No other major
democracy operates so political a system of law enforcement as the United States.
The 93 U.S. attorneys are all political appointees. They report to an assistant
attorney general for the criminal division, also a political appointee. The AAG
reports to a deputy attorney general and finally the attorney general—all
political. Ideally, while people are appointed to those posts for political
reasons, they do not do their jobs in a political way.
Americans can be proud
that this ideal is so often voluntarily met. But when not voluntarily met, the
ideal is difficult to enforce.
In other democracies,
the equivalents of the AAG for the criminal division are career civil servants.
The British attorney general has no role in the operation of the Crown
Prosecution Service. Germany’s general federal prosecutor is even more
insulated from politics.
Problems arise in these systems too. Justin Trudeau’s
government in Canada was rocked by the charge that the prime minister had
leaned on prosecutors in that country to go easy on a corporation that had been
generous in its campaign contributions to his party. But in those other
countries, the brute political pressure that Trump applied via Attorney General
William Barr on the Department of Justice is much less likely to have an
effect.
At one point in 2019,
Trump simultaneously refused all cooperation with 20 distinct congressional
investigations—testing whether there was much Congress could do about it. There
proved to be surprisingly little. Congress’s contempt powers lag far behind
those of courts. As the Congressional Research Service warned in
2017:
A number of obstacles face Congress in
any attempt to enforce a subpoena issued against an executive branch official.
Although the courts have reaffirmed Congress’s constitutional authority to
issue and enforce subpoenas, efforts to punish an executive branch official for
non-compliance … will likely prove unavailing in many, if not most,
circumstances. Even outright lying
to Congress can prove exceptionally difficult to punish.
“Almost no one is
prosecuted for lying to Congress,” concludes the leading law-review article on the subject. “In fact,
only six people have been convicted of perjury or related charges in relation
to Congress in the last sixty years.” Those words were published in 2006, but a
report by Roll Call in 2018 found they still held true. The pitcher
Roger Clemens was indicted for lying to Congress about steroids
in 2009. He was acquitted on all charges in 2012. If you’re a Trump
executive-branch official, you must like your chances of getting away with
lying—or worse.
Some wonder: Why
doesn’t Congress act? But there is no “Congress.” There are only the two
parties in Congress. The members of the two parties cannot even agree on
methods of evidence or standards of behavior. Republican Representative Ted
Yoho from Florida spoke for troublingly many members of his caucus when he said of a fellow member of Congress that he
“works for the president; he answers to the president.” Yoho’s district around
Gainesville, Florida, voted 41 percent against Donald Trump in 2016. Those
voters are also Yoho’s constituents, but he does not answer to any of them.
In his mind, he is a party man first and only.
Congress as an
institution cannot function on this kind of partisan mentality. There can be no
meaningful oversight of the executive branch if the only standards are “Yay,
team!” and “Boo, team!” The party of the president should be just as keen as
the other party to enforce subpoenas and punish contempt, because both parties
in Congress should feel the same concern for the powers of Congress. But of
course, that’s not how things work.
Almost all
Republicans in the House of Representatives, and the great majority of
Republicans in the Senate, will act to defend a president they despise against
charges they know to be true. The worst of them will hare after crazy
conspiracy theories. Most, though, will voice their concern and then find ways
to avoid their duty. The system that protects all of us has failed because the
protectors of that system have failed to protect it for us.
Democracy does not
fly on autopilot. If the people responsible for the institutions of democracy
will not do the job, the job will not be done. While the job goes undone, the
United States and the world careen toward conflict and crisis.