Published by The Lawfare Institute
in Cooperation With
If you believe the FiveThirtyEight electoral forecast, Donald Trump has only between a 14- and 16-percent chance of becoming president. If you believe the New York Times’s “Upshot” forecast, that chance is even lower, around seven percent.
Given these numbers, it’s tempting to not plan for a Trump presidency. Personally, I’d like nothing more than to sweep the possibility under the high-impact-but-low-probability event rug, right alongside all those asteroid impacts and worldwide pandemics I don’t spend much time preparing for.
Better yet, I would love to put it in the category of horror movie, the sort of zombie apocalypse I can enjoy imagining knowing that it is impossible.
But events with a seven percent chance of happening actually take place all the time, and events that have a 16 percent chance of happening take place more than twice as often as that.
This is why I keep life insurance, even though I have a much lower than seven percent chance of dying this year. And while I don’t think I have a 16 percent chance of major medical expenses either, I still maintain a health insurance policy, as do other healthy people who know what’s good for them. Responsible people plan for disasters of this likelihood; and while the Sunday shows yesterday were full of talk of whether the presidential race is over, a major party candidate for president always has a chance of prevailing.
So our democracy needs a health insurance policy.
We need to imagine as well how such a coalition should respond to the unthinkable: What if Trump wins?
For purposes of this discussion, I’m going to make the perhaps radical assumption that Trump’s words seriously reflect the things he means to do. Trump is, to be sure, part clown and part showman, and I hope never to learn exactly what percentage of his words represents either clownsmanship or showmanship and what percentage reflects his real policy aspirations. In all candor, I suspect the man himself actually does not know the answer, so vaporous is his grasp of real policy matters.
But we’re talking about the vast powers of the American presidency, so it behooves us to at least consider the possibility that Trump means what he says and will try to do the things he promises to do, if only because saying things creates path dependencies towards trying to do them. Promise enough times that you’re going to build a wall and make Mexico pay for it, and you may start to feel like a wuss—or worry others might see you as one—if you don’t actually try to do it. Some of Trump’s idiotic promises may, like this one, have only diplomatic ramifications. But a great many of them—from using state power to retaliate against political opponents, to targeting terrorists’ families, to going after the press, to interrogation tactics far worse than waterboarding, just to name a few—are either flatly illegal or, at a minimum, raise serious legal or constitutional questions.
The essential task of the Coalition of All Democratic Forces during a Trump administration will be to protect democratic institutions against his promised predations and to protect individuals subject to the abuses he promises.
One would hope that Congress would be a partner or tool, in such a project, being a coordinate branch of government with vast legislative, oversight, appropriations, and impeachment powers. But I have my doubts that Congress would, in practice, be up for a serious confrontation with Donald Trump. So far, in contrast to many conservative intellectuals and a great many former Republican officials, most Republican members of Congress have jumped—many of them uncomfortably, but they have jumped—on the Trumpist train. And it’s hard to imagine Trump winning the presidency without the GOP retaining control of both chambers of the legislature. The congressional GOP leadership has been, well, something less than a group of profiles in courage—with Sen. Mitch McConnell pretending there is no presidential election going on at all, and certainly no Republican nominee for president, and House Speaker Paul Ryan playing an ongoing game of hot-and-cold which has simultaneously enraged Trump supporters and failed to endear Ryan to Trump opponents.
The point is that there is no reason at this stage to imagine that the legislature will be a viable venue for push-back, which is a shame considering the powerful set of tools at its disposal. The Coalition of All Democratic Forces should certainly see what kind of use it might make of the legislature, but realistically, we should probably expect that the coalition’s job in Congress will be to prevent Trump from passing anti-democratic legislation. That is, the task in Congress will be a negative one of denying Trump the use of the Article I powers, not the positive one of the coalition’s using them itself.
That leaves the tool that will certainly be available: the courts. The courts have a few obvious advantages, starting with hundreds of independent judges of both parties whom Trump cannot remove from office and who don’t have to face his supporters in forthcoming elections.
This tool is not a cure-all by any means. Much of what the President does, after all, is not justiciable, particularly the president’s overseas activities. Trump as president would be able to do a huge amount of damage that no amount of litigation would be able to restrain—probably including certain versions of his utterly noxious Muslim ban. So I don’t want to suggest that what I’m about to propose can “tyrant-proof” the presidency. As I have argued before, the only way to tyrant-proof the presidency is to not elect tyrants as president.
That said, litigation can restrain certain things, and a great deal of what Trump proposes to do will be ripe for legal challenge, particularly as his actions impact individuals who will have standing to sue or the right to defend themselves. As Trump attempts to use the powers of the presidency to lash out at people or groups, the actions he takes will generally give rise to litigation opportunities.
Which brings me to what happened this weekend.
The other day, Ted Boutrous, who heads the litigation practice at the law firm of Gibson Dunn—which, under conservative super-lawyer Ted Olson, represented George W. Bush in the contested election of 2000—tweeted in response to Trump’s threats to sue the women accusing him of sexual assault: