Published by The Lawfare Institute
in Cooperation With
A bunch of people have told me over the last week that they have been at least somewhat reassured by Jack Goldsmith’s piece last week on “libertarian panic” and the Trump presidency—as, indeed, was I.
In the piece, Jack lays out why he is “much less panicked than [his] colleagues”—including me—“about Trump’s pledges for illegal action, and why [his] colleagues’ panic is one reason why [he is] not too panicked.” Short of an extreme emergency environment, Jack suspects that “the widespread panic about Trump and law compliance in the intelligence and military communities is misplaced.” But the panic, he argues, is also useful and functional. “I have no idea if Trump will attempt to follow through on any of his campaign pledges or suggestions for unlawful action, but if he does, I seriously doubt he will succeed,” he writes. The bureaucracy and external actors will resist any moves by Trump to engage in illegal behaviors and policies. Moreover, our panic itself “can be useful, indeed vital, even if misplaced.”
It is important to understand what Jack is not arguing here. For many readers, I suspect—and I was initially one of them until a conversation with Jack this morning—Jack’s use of the word “panic” may suggest that he is being dismissive of rule of law concerns about Trump. My dictionary defines the word “panic” as “sudden uncontrollable fear or anxiety, often causing wildly unthinking behavior.” To label something a “panic,” in the conventional use of the word, arguably questions the rationality of the reaction.
But Jack is using the word term “libertarian panic” in a narrower sense, borrowing it from Adrian Vermeule as a term of art that Jack defines rather precisely: “a sharp reaction and possibly overreaction to perceived or anticipated security measures that are believed to represent unjustified attempts to violate the law or curtail civil liberties.”
So Jack is saying, in short, that on rule of law questions, his colleagues are reacting sharply (agreed) and in a fashion that, right or wrong, is functionally useful (I hope so), but that he suspects will turn out to be an overreaction—in part precisely because the panic itself may help to prevent some of the darker outcomes over which many of us are panicking.
I hope very much that this latter prediction turns out to be correct. But I want to say a few words in defense of libertarian panic, and panic over Trump more generally, not merely as functionally valuable but also as an analytically reasonable reflection of our present predicament. I write this as someone who managed to go through the entire Bush administration without ever engaging in libertarian panic and who has written far more often in the past in criticism of other people’s libertarian knees jerking than in defense of the movement of my own knees.
Indeed, I think there are good reasons why someone, even now, might have a guarded reaction to cries of libertarian anxiety from the Left, and I am keenly aware that until very recently, I would have been among the first to note sharp civil libertarian reactions to government action that I regarded as premature, hyperbolic, or overwrought. Indeed, in my view, the Left has serially cried wolf in the past on national security matters. It has often confused legitimate policy disagreements with the march of tyranny. It has often confused the normal push-and-pull of the policy process on very hard issues with authoritarianism staring us in the face. And it has frequently treated recognizably democratic actors—like George W. Bush, for example—as though they were would-be Vladimir Putins. As a person who has often mocked such hyperventilations, I will be happy if circumstances were to make me look similarly foolish in my own eyes.
And let me be clear as well that I don’t disagree with anything Jack says about the constraints on Trump should the President-elect try any of the many dangerous things he has promised to try—or flirted with trying. The challenges of turning the United States into an illiberal democracy run by a two-bit strongman are severe. Our institutions are strong. Our democratic culture is strong as well—though apparently less so than many of us thought. Our culture of resisting authoritarianism is exceedingly old and deeply rooted. And, as Jack so cogently lays out both in the article and in Power and Constraint, the presidency is constrained in myriad ways. All of that makes the Trump threat exactly that: a threat. His election is not the end of American democracy. It represents only a question about the future of American democracy, one we have yet to answer.
So if we agree on all this, why am I more panicked than Jack is? A few reasons:
First, Trump’s words bother me a great deal. At least in my case, the libertarian panic Jack describes is almost entirely a response to words spoken by, or tweeted by, Trump himself. I absolutely agree with Jack that the combination of the bureaucracy, the press, the courts, and various internal and external oversight mechanisms are likely to make many of these words into mere words. But I’m less reassured than Jack apparently is by that fact.
The words of the President of the United States matter in their own right. It matters whether he talks like a thuggish kleptocractic strongman from a corrupt illiberal democracy. It matters whether he threatens the press and protesters. It matters whether he promises to commit war crimes. It matters whether he promises retaliation against businesses that move jobs overseas. It matters whether he wholesale makes up facts about the circumstances of his own election. It matters whether he denigrates minority groups and appoints senior officials who do the same. Even if he ends up able to do only a small fraction of the things he talks about it, the words still matter.
Jack certainly acknowledges this point: “Obviously,” he writes, “Trump’s mere pledges to violate the law—to waterboard, or kill civilians, or discriminate on the basis of religion or nationality, etc.—can have a devastating impact on U.S. interests, at home and abroad, even if he is unwilling or unable to carry them out.” Yet I worry that there’s a deeper connection between the the words of the president over time and the rule of law culture that then constrains him. Even if Trump cannot effectuate his ambitions, in the immediate term, it is corrosive of our democratic life merely to have a president who says these things. Saying them again and again normalizes them. And the question is whether those constraints as a consequence weaken over time.
Nor can I take much comfort in the idea that Trump may not mean a word of any of it—or may mean it all in the moment but then never give it another thought—and I don’t take Jack to be suggesting that I should. It is also corrosive of our democratic life to have a president whose words have no meaning, after all.
In other words, even if Jack is entirely correct that both internal and external checking forces will ultimately tame Trump, I am only a little bit less alarmed as a result of that fact. If that happens, as I most sincerely hope it will, we may still sustain real damage. Indeed, we have already sustained damage.
There are some additional factors that enhance my panic. One of them is the slow pressure put on the checking institutions Jack describes by a president who—pardon my language—just doesn’t give a damn. This is a real unknown variable.
A huge amount of our expectations of the presidency do not sound in law but in norms and a sense of civic decency and virtue. We expect the President to disclose his tax returns. We expect the President to not have business interests with foreign governments. We expect the President not to appoint open bigots to senior positions. We expect the President not to attack or threaten his opponents in late-night tweetstorms. None of this is law. But what happens when a president brazenly blows through these expectations, not in a kind of slow erosion over time but in a shock-and-awe blitzkreig? Focusing too narrowly on policing legal lines risks ceding the normative lines that actually define our expectations of presidential behavior.
The other day, Trump told 60 Minutes that he was considering the removal of FBI Director James Comey for Comey’s decision not to recommend criminal prosecution of an American citizen whom the FBI had determined had not committed a prosecutable criminal offense. Meditate on that fact for a moment: The President-elect has publicly contemplated firing the FBI director for clearing a person after an exhaustive investigation whom the President-elect publicly branded as guilty without conducting any investigation. There is no doubt that Trump has the legal power to do this. There is no doubt either, at least not in my mind, that to do so would be a horrific abuse of presidential power. The comment, however, inspired no public outrage, just dutiful notice in the press. Without violating any laws, in other words, the president can profoundly change the norms and expectations of presidential behavior with respect to civil liberties and lots of other things.
This brings me to an important point: It matters a great deal how permissive an environment Congress gives the President on such normative questions. A Trump administration that faces a Congress willing and able to use its powers of oversight and appropriation to push back against abuses, both legal and normative, is a less scary prospect than one that faces a Congress willing to roll over and play dead when the President fires the FBI director for not concocting a criminal case against a politically disfavored opponent. Jack is at least a little more confident than I am that “We can expect much less obeisance from Congress toward Trump, who has a fraught relationship with Republican Party politicians, to put it mildly,” than it showed towards Bush. We have not yet seen how energetic a role Congress is going to play in either checking or enabling Trump—or both. And the early signs have actually been quite mixed—far better on interrogation than on the overtly political removal of the FBI director, for example. A Trump who knows he will face real consequences for illiberal behaviors, up to and including impeachment and removal from office, is a different animal from one who believes he can get away with a lot.
Finally, it is important to stress that in analyzing libertarian panic, Jack quite self-consciously considers it in abstraction from the other reasons to be anxious about Trump in the national security space. He starts his piece by quoting a typology of anxieties I had laid out about Trump and saying that he shares my worries as to points (1), (4), and to a certain extent, (5):
- [Trump’s] often bizarre, erratic, and egomaniacal behavior that raises serious questions about his management of foreign and military affairs, particularly in a crisis or a situation in which he is insulted;
- his oft-expressed illiberal attitudes about religious and ethnic minorities and foreigners;
- his promised abuses of power with respect to free speech and the press and in the context of overseas conflict;
- the strange affinity he has shown for Russian strongman Vladimir Putin, combined with his campaign’s numerous and unexplained entanglements with Russia and Russia’s intervention in the presidential campaign to his apparent benefit; and
- his rejection of mainstream foreign and defense policy thinking on matters as basic as the American commitment to traditional allies.
He then goes on to discuss libertarian panic, which he defines in reference to points (2) and (3) only.
I confess that I am less able than Jack is to sever the rule of law questions about Trump from the other anxieties. Trump is, after all, a package deal, not a dis-aggregatable collection of attributes which we can control or fail to control individually. When we elected him, we didn’t just get an egomaniac, an illiberal, a person who promises abuses of power, a guy with an admiration for Putin and aides with weird connections to the Russian president, and a person who rejects mainstream foreign and defense policy thinking. We got an egomaniacal illiberal would-be abuser of power with an admiration for Putin who rejects mainstream foreign policy thinking. The dangers come in a melange. To break off his illiberal qualities and assess their manageability in abstraction from other dangers runs at least some risk of missing a whole that represents a danger greater than the sum of its parts.
To be fair, the interplay between these character flaws may well make Trump more manageable, not less. To the extent that more actors perceive him as a real threat because of his impulsive weirdness, sucking up to Putin at the expense of our allies, and ethically dicey mingling of business with government, for example, that may make those actors less deferential to him and more willing to challenge him on abuses of power.
But the interplay could cut the other way too. Just look at the way Carrier this week has buckled and agreed to maintain some of the jobs in Indiana it was planning to move to Mexico. Was this outcome purely the result of incentives that Trump managed to put together for the company, or also the results of threats to and bullying of a company that sees ten percent of its revenue from government contracts? And what happens when the actor on the other end of the negotiation isn’t just a company that has made the economic decision to off-shore jobs but, say, a giant corporation with a comparatively small and economically expendable investment in a newspaper that’s been critical of Trump? What happens over time to our tradition of eschewing political violence when the President of the United States can’t be bothered forcefully and seriously and in a sustained fashion to denounce hate crimes committed against vulnerable populations by people who proudly call themselves his supporters? What happens when the President is too busy tweeting about how flag burners should serve time in prison or be stripped of their U.S. citizenship—notwithstanding the Supreme Court’s ruling on the subject—to send a clear message to Putin that we will defend our NATO allies or when Putin simply perceives him as such? What happens when the President of the United States starts suing critics for libel for criticizing him, a form of harassment very available to him that can have big implications for people’s lives even when they ultimately prevail against him in court? None of these questions implicate narrowly the concerns of points (2) and (3) in my typology in abstraction from other concerns.
My point is that I don’t really perceive myself as experiencing a distinct libertarian panic, any more than I perceive myself as experiencing a Trump-impulsiveness panic, an emoluments panic, or any other of a variety of discrete panics that we could meaningfully consider in isolation from one another with respect to our President-elect.
I experience it all as one collective Trump Panic. I hope very much that it turns out to be, in Jack’s words, “misplaced.” But I’m not sure I buy that we should consider separately our “sharp reaction and possibly overreaction to perceived or anticipated security measures that are believed to represent unjustified attempts to violate the law or curtail civil liberties” from our concurrent “sharp reaction and possibly overreaction” to the many other features of Trump that so many of us find so alarming.
I, for one, can’t quite do it, but maybe that’s the panic talking.