Trumping the
Constitution
Bob Travica
(Feb. 22, 2020, reviewed Sep. 29, 2020)
NOTE: This blog was written months ago. Before having a chance to review the draft, COVID-19 hit the world hard and my attention turned that way. Who could imagine that Mr. Trump would take a lead role in the COVID time as well, playing a bad boy, and so with no veil. But this is a story for the next blog in which I will discuss recent misdeeds of this 'tremendous golfer' and argue that he will lose the election. This one below is about his role in exposing the weaknesses of the U.S. Constitution and in furthering its undermining.
The Big Chief danced vigorously around the fire, shaking wildly his headdress of heavily sprayed hair implants. When he finished his winning dance, he looked at the teleprompter and shouted: "Hey guys, you've done a really good job! Tremendous! Daddy trained you well. Come here to get your treat!" Creatures kneeling around started to inch toward the Big Chief with their mouth open. He grinned and threw a handful of small bones in the air.
Got it? If not, let's try another opening line. On February 5, 2020, the U.S. Senate relinquished its powers in order to inaugurate the first American king Donald Trump I. That's the day when the American Republic faced monarchy. This event ties into the topic of American political system I promised to address the last time I wrote about Trump (see).
CEO of USA Corp.
I previously suggested that President Trump would be impeached in the House of Representatives but acquitted in the Senate. And so it happened that the House controlled by Democrats (Dems) impeached the President for the offenses of abuse of power and of obstruction of Congress in December 2019. The Senate controlled by Republicans (I'll call them Reps) rejected both these articles. The decision was preceded by three weeks of grueling speeches in the Senate, where the impeachers wrestled with Trump's lawyers.
At the Senate trial, the impeachers struggled to prove that Trump abused power when he tried to exchange Congressionally approved military aid for Ukraine for the favor of digging political dirt on Democrat Joe Biden, a contender in the American presidential election this year. Prompted by an anonymous whistleblower who traced a call between Trump and the Ukrainian President, the House conducted an investigation. Trump refused cooperation and blocked executive officials from testifying and releasing documents; the impeachers qualified this as obstruction of the Congress. Battling back, Trump's defense struggled to minimize the importance of the incriminatory evidence, offer an alternative story on delaying the aid ("Trump was concerned with corruption in Ukraine"), and to discredit the impeachment on a procedural basis. But all that was rather a show trial with no witnesses or new documents brought in because Republican senators blocked these. It reminded me unpleasantly of the Nazi or Stalinist-era fabricated trials. In the final act, just one Republican senator dared to drift from the party line voting for removing Trump from office.
The acquittal vote was the end of the Dems' long chase which included a two year-long "Russian Probe," the impeachment-driving Ukrainian case, some conspiracy theories, the U.S. intelligence community, most of the mainstream media, and millions of dollars and works hours.
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The plan of
the self-proclaimed challenger of the "Washington swamp" became
clear: replace the Washington swamp with a Trump-spider web.
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During this period, Donald Trump revealed his true colors. He
stirred internal and foreign politics according to his populist ideology of "Make
America Great Again" (MAGA), undoing the laws and international agreements
of preceding Democratic administrations. He intensified fighting with American
liberal mass media and the intelligence sector. His drunken sailors' grudging and
aggressive Tweetomany persisted as well as the character of his public
statements spinning relentlessly fact and fiction. The executive branch has
remained unstable under Trump's leadership as he kept disturbing it by frequent
firing and hiring. He just couldn't get rid of the role he had played in the reality show "The Apprentice", which made him broadly famous.
If the first half of Trump's tenure indicated that the real estate baron's transition to a top politician was uneasy, the following period proved that he could not learn, not even how to act presidentially. As in "The Apprentice" and in his business career, Trump has been capable of playing just a single role, that of a hard-handed boss. He's been running the country as the CEO+Chairman+President+owner of a business corporation. In a word, the plan of the self-proclaimed challenger of the "Washington swamp" became clear: replace the Washington swamp with a Trump-spider web.
And then again, as oddly as it can be, Trump's clumsy moves have been blowing up the carefully maintained covers in America's realpolitik. The covers supposed to obscure that politics is akin to manipulation rather than "serving people," that politicians' lie routinely, that America is a plutocracy where politicians serve special and their own interest, and that America's foreign policy is driven by cold cash rather than hot morals. Most importantly, Trump's trampling (a.k.a. trumping) over untouchable institutions revealed that "something is rotten in the state of 'Denmark'." The soft spots are at the very heart of the American political system.
Dream of Separating and Balancing Powers
The American political system is officially based on a separation of the legislative, executive, and judicial branches of government, combined with mutual checking and balancing of each other. The model was novel when introduced after the war for independence from the British colonial rule in the 18th century, and its basic ideas still shine. Each part of the government is supposed to have its realm of authority, which includes protecting it from intrusions by their counterparts. Legislators make laws, executives manage within the bounds of the law, and judges apply the law to rule on socially appropriate behavior. A division of labor as in a business firm but without a boss on the top. This is different from other political systems at that time and still today. Monarchies of the past gave way to political systems in which the executive branch is partly bestowed with legislative power (the United Kingdom, Canada), or which have a Parliament wielding legislative power plus controlling the executive branch by the right of voting on confidence in the government.
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Trump: I can do anything I want because I'm the President.
Sun King Louis XIV: Anything we do is legal because we wish so.
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Authors of the American Constitution (the framers, founding fathers) decided to untangle the bundle of monarchic powers and allocate these to separate branches of government without any of these towering others. Whether this was realistic in a culture that highly valued individual ownership and governance, is a question for Constitutional and cultural studies. The fact is that the Trump period shows clearly an imbalance of powers in favor of the executive branch. For example, Trump has been using extensively executives orders to introduce new legislation that's been controversial for the most part. Also, he has increasingly ignored the Congress that worked within its domain of power, and pushed executive officers to do the same. Examples include Attorney General Barr, head of the Judiciary Department, who manipulated the release of the Mueller investigation of the foreign involvement in the 2016 elections ("Russian Probe"). Then, in testifying before the Senate, Barr coolly drove a legalese slalom through questions to respond or not as he pleased.
It's very interesting that all these daring President's moves are within the Constitution and its interpretations by the Supreme Court. Specifically, powers of the executive order and of executive privilege of non-disclosure draw on interpretations of the Constitution. However, in current mulling in Washington, the constitutional institution of the presidency has been kept out of criticism, at least publicly. Doesn't it stand to reason that a bossy style of this (or any) President should not be able to make executive power dominant if the Constitution guarantees a separation and balance of three powers?
Isn't it peculiar that a distinguished professor of Constitutional law interpreted the Constitution at the Senate trial by assuring that "a President can do anything he wants but commit a federal crime" and still not be removable from office? While he supported his oratory with aid of lots old, dusty books, his words merely echoed Trump's recent public statement ("I can do anything I want because I'm the President"). All this buzz is spookily similar to maxims of the 17th century French "Sun King" Louis XIV. He ruled long with absolute power, pontificating that what was good for him was also good for France, whereas anything he did was legal because he wished so.
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If a President can do anything he wants but commit a federal crime, is
there something wrong with the U.S. Constitution?
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All things considered, it seems that the revered U.S. Constitution does not preclude, if not even supports, the domination of executive power. So, the Constitution needs to be put under lenses if we want to understand why the American political system now appears broken under Trump's feet.
Executive Bias
The American political system has some peculiarities. These start with the terminology. It refers to "administration" to what is usually called "government" elsewhere; the heads of the areas in the executive branch including commerce, finance, transport, agriculture, interior affairs (managing government land), foreign policy, and defense. The term "government" is used in the U.S. in reference to the legislative, judicial, and executive parts (branches) of the nation-state organization; this is called "state" in the rest of the world. The federal policing function, which in most countries is identified as a domain of interior affairs, is within the Department of Justice (DOJ) in the U.S.
DOJ is part of the executive branch and includes FBI and other federal law enforcement agencies as well as intelligence agencies (CIA is one of them). DOJ has some judicial prerogatives since it can initiate a review of court decisions. This is again different from the rest of the world, where the notion of justice is associated with courts of law, the judicial branch being clearly separated from the executive branch. Unless there is a police/military regime in place, it is unusual in most countries that the head of police or security gets involved directly in daily politics as the current head of DOJ, the U.S. Attorney General, does. And it's all legal unless the Supreme Court rules differently.
The U.S. President heads both his administration and the state. These two roles are separated elsewhere. In some countries, the President of State has a stronger power position vis a vis the Prime Minister (e.g., France). In other countries, the President is rather a figurehead representing the state internationally, while the Prime Minister holds larger executive power (typical of Europe). As no such a separation exists in the American political system, the U.S. President wields more power than any president or a prime minister in other countries. (Presidential systems exist in Latin America too.)
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American President
wields more power than any president or a prime minister in other countries. Presidential power increases when a
President's party dominates Congress.
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One of the presidential powers is hiring (and firing) the
heads of organizations making the executive branch. The President appoints
officials of an administration or nominates these (like the U.S. Attorney
General), while the Senate approves the appointment. The President also nominates
the Supreme Court Justices and Associate Justices, while the Senate approves
them. This is equivalent to an owner's or CEO's powers in private business. This
authority can be used for expanding executive power as the former Presidents
and the current one prove. By putting loyalists in leading positions and
threatening them by firing, Trump is able to direct the workings of the executive
agencies.
Although the bookish definition implies that the executive branch makes no law, the U.S. President is entitled to issue executive orders that come automatically into effect with no approval of other branches of the state. That's the law as well. It is most visible in foreign policy, where presidents can start wars without the approval of Congress. President Obama initiated a whole war by drone against persons that his administration designated as terrorists. The war also targeted U.S. citizens abroad who were on the wrong side, and so without charges, due process, or trial. Both Obama and his predecessor G.W. Bush managed massive surveillance operations abroad, including spying on the U.S. allies in Europe. Bush's presidential resume also includes ratcheting up interrogations techniques that security agencies could carry (e.g., torturing prisoners by waterboarding).
As for President Trump, some of his foreign policy moves have caught by surprise adamant cold warriors and other traditionalists in the U.S. foreign policy, thus indicating again huge presidential powers. He also killed single-handedly international agreements the U.S. was part of (NAFTA, the international nuclear deal with Iran, and the international climate accord). Further, Trump antagonized Iran in several ways and went into a trade war with China. To be sure, presidents do not tailor the foreign policy in solitude with no influence of corporations, the military-industrial complex, and other powerful players. The point is that presidents can move the security, intelligence, and military arms of the state without the approval of Congress. And the Congress should make laws of such a magnitude, shouldn’t it?
In domestic politics, presidents also rule via several legislative instruments. Previous presidents expanded surveillance over the citizens, changing dramatically "the land of the free." Trump's executive actions include restrictions on immigration, expanding the Mexican border wall (he proclaimed it a national emergency), re-organizing the executive branch, meddling with taxes, health care, and a bunch of "America first"-orders.
Framing the Framers
It appears that the American strong Presidential model
collides with the idea of separation of powers. The Constitution provides no
means of curbing executive power even when it takes apparently wrong turns. The
mechanism of checks and balances is deficient. Since executive power towers
others, mutual balancing of powers is hard to achieve. Small children do not
balance the power of parents. Yes, they may run some checks but these are toothless
due to power asymmetry.
Sure enough, taking on the Constitution equals blasphemy. Both the pro- and contra-Trump camp swear allegiance to the Constitution and the framers. But when the politicking and legalese travesty is put aside, a common-sense question remains: How is it possible that two diametrically opposite sides find anchoring in the same document? Is it perhaps too broad, imprecise, underdeveloped, inconsistent, obsolete, incapable of preventing interpretations that counter its own assumptions? Wouldn't it be wise to take a realistic look at the Constitution in its historical time and contrast it with the complexities and needs of the present time? While the debaters in Trump's impeachment strived to divine what the framers did and did not want, it may be wise to remember that those founders of the independent American state tried to solve problems of their time based on contemporary knowledge.
It appears
that history exposes the inability of the Constitution to ensure removing any President
from office.
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The historical period of the framers was undoubtedly different from the present. So for example, when the framers started the Constitution with words "We the people," they didn't refer to the black part of the population because the framers themselves were slave owners. Or, the framers worried about governing over militias born uncontrollably in the War of Independence. Granted, there are still militias in the U.S., but these are self-styled groups that pile up weapons and exercise shooting, banking on the Constitutional "right of the people to keep and bear arms." Indeed, the changed historical conditions convolute past institutions.
The framers were foremost interested in preventing the
ousted colonial power Great Britain to conspire with the U.S. government
officials, including the President. Therefore, treason was defined as the top reason
for impeachment, followed by bribery. However, the framers also opened two other
boxes for impeachable offenses (borrowed from Britain, as was the whole idea of
impeachment) – "high crimes and misdemeanor." Opened them and left
empty for the future generations to fill in the content. All three American
Presidents impeached by the House (A. Johnson in the 19th century, B.
Clinton in 1999, and D. Trump now), as well as R. Nixon who resigned before his
probable impeachment, were charged on these bases. All three were acquitted by
the Senate.
It appears that history exposes the inability of the Constitution to ensure removing any President from office. The Congress has such powers on paper but is rather toothless in comparison with Parliamentary systems that can knock down the government (administration) by a vote of no confidence. The empty boxes for impeachable offenses are left to the mercy of political maneuvering, lawyers' intellectual gymnastics, and random circumstances of a given historical period. Perhaps the framers never really meant that a President should be removed from office but rather should be kept in check by such a possibility? They raised the bar for the guilty vote as high as to two-thirds of the senators present. True, in the Johnson trial the vote came to just one below the bar, but the number of the voting senators was just 54 (in the other two trials, it was 100).
Nobody is Above the Law… But the President
The Dems battling Trump keep shouting that "nobody is above the law!" The law implied is the Constitution. The Reps don't deny this publicly but rather through behavior. The Constitutional law professor mentioned above (otherwise known for playing devil's advocate or perhaps apprentice) offered Reps a parachute. He added to the Dem's "nobody is above the law" an appendix: "but the President!"
From the ethical perspective, the combatants follow two incompatible ethics. "Nobody is above the law" implies a rules-based ethic that has been a staple of Western liberal democracy (civil liberties, equality before the law). In contrast, "Nobody is above the law but the President" implies a utilitarian ethic that presumes good for a majority of people as the core ethical norm. In a nakedly partisan manner, the President's men and women brush off universalism in favor of particularism. Are they missing the boat? Not quite.
A significant pool of Americans feels safe under the President's wing; the populist ideology MAGA stir the masses and institutions; The Republican party must ensure another presidential mandate and (tacitly) protect the backing corporate interests; and what is always crucial for the American voter - the economy hums assuredly. Sufficient reasons for being utilitarian. Ah yes, there is also a hefty dose od pragmatic ethic on the Reps' side: good is what works at the moment and assures the survival of the individual politicians involved.
Although the opposed ethics may be ultimately responsible for incompatible interpretations of the Constitution, the implication again is that this document allows for such incompatibilities. The President can be above the law if he is daring enough and his party and voters comply. Fascination with the dated constitutional basis represents a puzzling paradox in the American culture that heavily invested in the present historical time. Even though America has been making its own way in many respects, it can't escape core social regularities that played out in the world's history. Indeed, threatening omens of the past have been bursting as the rule of the first American king, Trump I, unfolds.
One of Trump's defenders in the impeachment trial invited
Dems to drop the impeachment ball and join Reps under the economic mastermind
of Donald Trump. He screamed: "One nation, one people!" Sounds
familiar, although the complete historical blueprint reads: "Ein Volk, ein
Reich, ein Führer!"
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