Democracy & Elections Executive Branch

The Cycles of Panicked Reactions To Trump

Jack Goldsmith
Wednesday, April 11, 2018, 6:28 AM

The raid on the office of Donald Trump’s lawyer Michael Cohen, the president’s latest tweet-complaints and

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The raid on the office of Donald Trump’s lawyer Michael Cohen, the president’s latest tweet-complaints and related rant, and the White House press secretary's claim that the President believes he has the authority to fire Special Counsel Robert Mueller, have many people spun up about that possibility that Trump will soon fire Mueller, or Attorney General Jeff Sessions, or Deputy Attorney General Rod Rosenstein. Sen. Chuck Schumer and other Trump critics warned yesterday that firing Rosenstein or Mueller would spark a “constitutional crisis.” Benjamin Wittes believes the “country is entering a dangerous moment—the moment of actual confrontation between the president of the United States and those who would investigate him.” In response to such concerns, Republicans leaders yesterday "used some of the harshest language yet to warn President Trump against moving to undercut" Mueller.

Are we really in or near a constitutional crisis, or even a real confrontation? Will Trump really fire Sessions or Rosenstein or Mueller this time? It sure seems from the news coverage in the last 24 hours that something momentous is about to happen.s But might the Republican warnings dissuade the President from acting?

If the past is any guide—and the question here is whether it is—perhaps we should calm down. At least five major times in the last 10 or so months (and many more times on a smaller scale), we have seen a version of the following cycle: (1) Trump says something menacing (or is reported to have done so) about firing a senior Justice Department official or clamping down on the Mueller investigation, (2) Commentators and politicians of both parties (but mainly Democrats) announce that the United States is on the verge of a constitutional crisis, (3) Republican leaders warn the president to stand down, (4) Trump, one of his lawyers or a White House spokesperson says, in effect: Don’t worry, the president has no plans to do the horrible thing you fear, and then (5) everyone eventually calms down, for a bit, and the threat seems to recede, until we start at step 1 in a new cycle.

Consider a few examples (in reverse chronological order), and then we can speculate on what the cycles mean.

March 2018

The provocation: After Sessions fired Deputy FBI Director Andrew McCabe on March 16, the president issued a string of tweets criticizing the Mueller investigation.

The panic: The commentariat went mad with worry that Mueller too would soon be fired. “Is America on the verge of a constitutional crisis?,” asked Mika Brzezinski on Morning Joe after reviewing the McCabe matter. “I think we are looking at it,” answered Neal Katyal. Thinkers as different as Juan Cole at Informed Comment and John Cassidy in the New Yorker warned that the United States was nearing a “constitutional crisis.” Stephen Colbert said something similar, as did other late-night show hosts and many stock market watchers and analysts.

The Republican response: Several leading Republicans responded to the ostensible “constitutional crisis” by defending Mueller and warning Trump not to fire him. Firing Mueller “would be the beginning of the end of [Trump’s] presidency,” said Sen. Lindsey Graham on March 18. Sen. Marco Rubio said on NBC’s Meet the Press the same day that he “remain[ed] confident that the special counsel is going to conduct a probe that is fair and thorough and is going to arrive at the truth.” Speaker Paul Ryan said a few days later: “The special counsel should be free to follow through his investigation to its completion without interference, absolutely. I am confident that he'll be able to do that.” Several other senior Republicans, including Senate Majority Leader Mitch McConnell, House Oversight Chairman Trey Gowdy, Senate Foreign Relations Chairman Bob Corker, Senate Finance Chairman Orrin Hatch, and Sen. Jeff Flake made similar statements.

The administration response: Administration lawyer Ty Cobb said in a statement on March 18: “In response to media speculation and related questions being posed to the administration, the White House yet again confirms that the president is not considering or discussing the firing of the special counsel.”

February 2018

The provocation: The Nunes memo is released on Feb. 2. When asked that day whether he was going to fire Rosenstein, Trump responded, “You figure that one out."

The panic: The same day several senior Democrats (including House Minority Leader Nancy Pelosi) warn of a constitutional crisis if Trump uses the memo as an excuse to fire Mueller or Rosenstein. Over the next few days several commentators and Democrats warn of or predict a constitutional crisis as well.

The Republican response: The day the memo is released, McConnell says he thinks “there’s no effort underway to undermine or to remove the special counsel,” and Ryan says “it is critical that we focus on specific actions and specific actors and not use this memo to impugn the integrity of the justice system and FBI, which continue to serve the American people with honor.” Two days later, Gowdy says the memo has no bearing on the Russia investigation, and former White House Chief of Staff Reince Priebus says that he “never felt that the president was going to fire the special counsel.”

The administration response: On Feb. 2 and thereafter, several White House aides insist that the president has confidence on Rosenstein and no plans to fire him

January 2018

The provocation: On Jan. 25, the New York Times reports that Trump had ordered Mueller’s firing in June 2017 but backed down after White House counsel Don McGahn threatened to quit.

The panic: Democratic Sens. Cory Booker, Kirsten Gillibrand, and Richard Blumenthal say firing Mueller risks a “constitutional crisis.” Numerous commentators as well describe the episode in the summer of 2017 as a constitutional crisis (or close to one).

The Republican response: The day after the Times story, Ryan says Mueller should be left alone; Sen. John Cornyn says firing Mueller would be a mistake; Sen. Thom Tillis says Mueller shouldn’t be used to score political points; and Senate Judiciary Chairman Chuck Grassley says Trump should let Mueller's investigation “work its course” and adds that he is “open” to legislation to protect Mueller. A few days later, Graham reiterates that Mueller should be left alone. Sen. Susan Collins says she has faith in Rosenstein, and that it “certainly wouldn’t hurt” to pass a bill protecting the special counsel.

The administration response: On Jan. 26, Trump calls Times report about the attempted firing “fake news.”

July 2017

The provocation: In an interview with the New York Times on July 18, Trump complains about Mueller’s conflicts of interests, says the special counsel would go too far if he looked at Trump’s finances, and refused to rule out firing Mueller. The Washington Post and the Times report on the Trump team’s efforts to control or discredit Mueller, and the Post adds that Trump is asking about the scope of his pardon power. The next week Trump tweet-attacks Sessions and Mueller.

The panic: Brian Beutler of the New Republic, Greg Sargent of the Post, Doyle McManus of the L.A. Times, Yascha Mounk on Slate, Edward Luce in the Financial Times, and Michael Cohen in the Boston Globe all say we are in or near a constitutional crisis.

The Republican response: Graham says he will introduce legislation to protect Mueller and warned that firing Mueller “could be the beginning of the end” for Trump's presidency. Corker says that firing Mueller would be “so far out of bounds,” that he can’t “imagine anybody’s even discussing that at the White House.” Rep. Michael McCaul warns of a Republican backlash if Trump fires Mueller. The next week, the Post reports that a “bevy of congressional Republicans are warning President Trump not to move against Attorney General Jeff Sessions in what many fear could be a prelude to the dismissal of special counsel Robert S. Mueller III.”

The administration response: On Aug. 3, Trump’s personal attorney, Jay Sekulow, says that Trump is “not thinking about firing Robert Mueller,” and that the “the speculation that’s out there is just incorrect.” Three days later, Trump’s aide Kellyanne Conway says that Trump is “not discussing firing Bob Mueller.” And on Aug. 10, in response to a question from the Times about firing Mueller, Trump says “I haven’t given it any thought.”

June 2017

The provocation: Trump friend and Newsmax CEO Christopher Ruddy says on PBS on June 12 that Trump is “considering, perhaps, terminating the special counsel.” Three days later (June 15), Trump tweets that the investigation is a “Witch Hunt.”

The panic: “Trump is Flirting with Another Constitutional Crisis,” says Vanity Fair on June 13. On June 16, Democratic Sen. Dick Durbin says that firing Mueller will bring the country to “the brink of a constitutional crisis.” Firing Mueller “would create a constitutional crisis,” says John Cassidy in the New Yorker the same day. And so on.

The Republican response: Sens. Graham, Collins, Flake and McCain, and Rep. Peter King defend Mueller. Ryan says on June 13: “I think we should let Bob Mueller do his work and get to the bottom of it and get to the bottom of it quickly so it can be vindicated.”

The administration response: “Mr. Ruddy never spoke to the president regarding this issue,” says then-Press Secretary Sean Spicer on June 13. The same day Rosenstein says he knows of “no secret plan” to fire Mueller and that he hadn’t seen any good cause to do so.

* * *

What might these cycles mean?

  1. Just because Trump has spun people up before and the crisis didn’t arrive doesn’t mean it won’t arrive this time. Trump is not exactly in control of his impulses. Maybe the latest events, which strike very close to the President, will drive him to follow through on threats he has made for nearly a year.
  2. But maybe the history of Trump panic cycles should give us pause. Maybe the president is playing us. Maybe he learned his lesson in firing Comey and thus realizes how self-defeating and harmful it would be to fire Sessions, Rosenstein, or Mueller. And maybe he has other aims in winding everyone up.
  3. But what might those aims be? The president or his agents act in ways at the provocation stage that seem designed to spark agitation and panic. This is a common pattern in the Trump presidency. But other than distracting critics or making them seem like exaggerators or fake-news purveyors, it is hard to see what Trump accomplishes. Maybe he gets consumption value out of manipulating people and watching their frenzied reaction in the face of his power.
  4. And maybe the panic is unwarranted. One gets a sense in reading the swath of news stories that reporters go out of their way to try to goad Trump into considering firing Sessions or Mueller or Rosenstein. One also gets the sense that the panic is exaggerated for two reasons. First, the thing that critics have been warning about over and over—the firing of senior Justice Department officials related to the Mueller investigation—has not in fact come to pass, and it is harder (politically) to do now than in the past. Second, the phrase “constitutional crisis” gets thrown around way too much. It is unclear what the term even means or how useful it is. There will certainly be a period of disruption and uncertainty if Trump fires someone in the Justice Department and, as I expect, resignations follow. But as I have explained before, the system has been pretty resilient to date. Any firing would only make Trump’s situation worse, and it is hard to see practically how Trump can shut down the investigation altogether in any event.
  5. But even if the panic seems exaggerated from one perspective, from another perspective it perhaps serves a vital role and thus is not exaggerated, even if Trump never follows through. I argued in a related context at the dawn of the Trump presidency that a panicked reaction to a threat to rule-of-law values can help to ensure that the threatened action never materializes. The panic to Trump and the related Republican response might be the very mechanisms that are keeping him from acting on his natural impulses. The provocation at stage one might be a trial balloon that gets shot down every time by the panicked reaction. Absent the reaction, Trump might follow through.
  6. One of the things that surprised me in looking at the examples above was how consistently Republican leaders in Congress have pushed back against Trump when the nation falls into panic mode. Not every leader, and not consistently. But in every cycle, an important cadre of senior Republicans push back and warn the president not to follow through on his ostensible inclinations to fire Justice Department officials related to the Russia investigation. That said, even amidst the warnings to Trump, the Republican leaders’ general insistence that we are not in a crisis and that Trump won't interfere with Mueller might result a kind of lull that retards stronger measures—like the Mueller-protecting bills in Congress—that would better deter Trump. I am not at all sure of this latter dynamic, but it is possible.
  7. I could be proven wrong if Trump fires Rosenstein or Mueller or Sessions, but I continue to think that the main aim of Trump’s discombobulating tactics “is to delegitimize Mueller for the same reasons that Bill Clinton’s proxies tried to discredit Ken Starr: to shape the politics of impeachment or, possibly in Trump’s case, of massive pardons. This would also explain why the discombobulating tactics are always accompanied by discrediting tactics (Mueller’s alleged conflicts of interest, the Justice Department’s going easy on Hillary, etc.).

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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