Published by The Lawfare Institute
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The news of the last several days may leave any number of factual questions unanswered, but even clearer than before are the sweep and character of the extraordinary difficulties facing this current Administration. In just 24 hours, and barely after the bizarre tweet about his “tapes” of the discussion with then-FBI Director James Comey, new questions have arisen about the careless handling of intelligence information and yet another intervention with the former FBI Director in a pending criminal inquiry. The analysis of what to make of all this—what ties it all together—has varied. There is talk of expanding criminal exposure, usually on an analogy to “Watergate”; speculation about the President’s temperamental shortcomings and fitness; and discussion of the consequences of a President who comes to the job without the requisite experience.
Each of these perspectives contributes in some measure to an understanding of the pass the Trump Administration has now reached. It may be useful to consider them all together and ask both what is distinctive about the “crisis” of the Trump Presidency and what must happen to address it.
How Strong is the “Watergate” Analogy?
Not all presidential scandals qualify as defining moments, successors in scale and impact to Watergate. The events leading to the disgrace and downfall of Richard Nixon made for a scandal of special vintage, associated with the onset of “constitutional crisis.” And the cry of “constitutional crisis” has been heard in the last weeks.
There are certainly, maybe obviously, similarities between the stresses on the two presidencies. These include:
- A challenge to the way their election or re-election campaign may have been waged, the issue being whether in order to attain or keep power, they had abused it.
- Volcanic presidential temperaments, which include a streak of vengefulness;
- A dedicated opposition;
- A hostile relationship between the government and the press, taken by the
- chief executives as further evidence that the political “establishment” would oppose them at every turn; and
- A question of whether in their self-protection or the advancement of their political aims, they obstructed the due administration of justice.
No less obvious, however, are the differences. Appreciating them is a key step in coming to terms with what is distinctive about the “crisis” presented by the Trump presidency.
Nixon was a lawyer and deeply experienced in government. He was credited with (or accused of) cold and devious calculation as a master of high strategy. Nixon was uncomfortable being in the public eye, secretive by nature and in no way a showman. He always appeared scripted. No one believed that Nixon misunderstood or misjudged the consequences of his actions, such as the significance of discussing “hush money” for the Watergate burglary squad. Nixon was slick with the facts and sly in the making of his representations: he was “Tricky Dick.”
Trump is not a lawyer and has no experience in government at all. He is impulsive and seems to lurch from one position to another. He craves attention and seeks it out. In many ways, he appears very much at sea at this highest level of government to which he ascended. The job is hard, he says: harder than he imagined. Issues like health care are more complex, he admits, than he ever knew. Trump’s factually insupportable claims are not masked by the studied use of ambiguous phrasing, or by other techniques, like innuendo, that distinguish the skilled practice of the dark arts of deception. He makes statements that are plainly, unmistakably and readily established to be false.
It is inconceivable that Nixon would have suggested to a reporter, as Trump did with Lester Holt, that he had fired an employee to protect himself from legal harm. He was, if anything, disciplined, and his legal training would have kicked into high gear to prevent him from anything close to self-incrimination. Trump both contradicted the White House’s official explanation of the grounds of the Comey dismissal and made his situation more complicated and perhaps even materially worse. It is impossible that he did this purposely. Nixon would not have proclaimed that he had “tapes” of conversations with law enforcement officials about investigations that involved him. Trump did. Had Nixon been asked what he thought of Russian hacking of DNC emails, he would have pronounced himself appalled—while secretly delighting in whatever advantage his campaign derived from the intrusions. Trump said he was delighted and invited the Russians to keep it up.
In a speech that the special prosecutor he fired delivered a year later, Archibald Cox spoke of the constitutional crisis defined by executive “manipulations” accomplished through “secrecy.” The president was abusing and exceeding his powers, offending norms and challenging legal boundaries; and in so doing, he was doing damage to the constitutional scheme of separated powers and a presidency answerable to the law. While the bungled burglary was “third rate,” the program of which it was a part—featuring pervasive illegality and the systematic, covert misuse of government authority and personnel—was no laughing matter.
The secretive manipulations of which Cox spoke was not only a product of self-serving scheming on the part of the President. They occurred within a historical context of deep debate and concern about the rise of the Imperial Presidency. In his book on Watergate, Professor Philip Kurland put this aggrandizement of executive authority at the heart of his definition of constitutional crisis: crisis as “the point in the progress of a disease when an important development or change takes place which is decisive of recovery or death.” Most dangerously, Nixon somehow imagined that the actions against his domestic adversaries fell within the authority claimed by other Cold War Presidents in the defense of the national security interest.
Out of this conception came the Plumbers and their break-ins, the illegal wiretapping of reporters and administration officials and the notion that the CIA and FBI could be used to thwart a criminal investigation. The President precipitated “crisis” by actions taken during “the progress of a disease”—the threat of the Imperial Presidency to the constitutional plan for separated and checked powers. And the disease had reached the “point… when an important development or change takes place which is decisive of recovery or death.”
It is hard except in the most superficial terms to say, at this time, that the Trump Administration is duplicating precisely this Watergate model, and launching the country into “constitutional crisis” in the same fashion. It only confuses issues to force the comparison and treat it as a reliable guide.
But the Trump Presidency and its mode of operation does raise very serious issues, on a course to generate a “crisis” of its own. It is important to see it for what it is—and to address on its own terms.
What Is Unique about the Trump Administration: A Governing Crisis
We have in this presidency something different from a concerted, stealthy abuse of power to achieve policy objectives. At the helm of the government is a man without experience in government operating as he always has in his line of business. The problem he presents is his application of those practices to alien territory, the government, which he seems not to understand and to which he been unable to adjust. The result is less a constitutional crisis, than a “governing crisis” which, from time to time, as in the current obstruction of justice issues, will have constitutional and legal dimensions.
A first example, especially telling because it is a day-to-day feature of this government, is the President’s tweeting—the impulsive, often late-night 140-character proclamations on whatever may be on his mind. Presidents have to appreciate that what they say will have consequences: firing off tweets to expose their raw thoughts to public view is no more responsible than arranging to have their personal diaries published daily on Facebook. As Tom Nichols has pointed out, these tweets also supply foreign governments with access to useful information about how he thinks and reacts, and they can put this learning to use in ways damaging to our nation’s foreign and national security interests. Yet although Trump’s own voters have registered discomfort with this tweeting, he is attached to it, seems to need it, and will not give it up.
That this may be termed a practice of the Mercurial, not the Imperial, Presidency, is little comfort. It is an example of his failure to see that what “worked” for him in the past cannot work in the position he currently occupies. Another example, apparently more thought out but also a reflection of sheer willfulness, is his refusal to acknowledge and deal appropriately with conflicts of interests arising out of the maintenance of his private interests. Apart from the dubious “trust” arrangement he has established, Trump has made a point of keeping his hand conspicuously in his business. His children run it and brief him on its profitability: one of his sons has publicly declared the “brand” to be “hotter” than ever. The President has burnished this brand with his regular trips for both personal and, the White House advises, official purposes to Trump commercial properties.
Legal questions have arisen about these private business interests and a suit, brought to enforce the Emoluments Clauses, is pending. The question cannot be fully answered, however, by litigation. The larger issue that includes but is not limited to the legal one, and which covers a practice like the tweeting, is the blindness to basic requirements, ethical and otherwise, for holding this office.
The missing piece here, alarmingly, is a conception of the presidency. He seems to be imagining that he is running one of his companies. He could not fathom why it would be questionable for the CEO of the United States to demand, as it has been reported that he did, loyalty from one of his senior employees, the Director of the FBI. Did the President not see the astonishing misconduct in asking the Director to reassure him of his own legal status, and to let Flynn “go”? Or perhaps he did, if only dimly, which would explain his asking other officials to leave them room so that he could speak privately with the Director.
Where Nixon put the government at risk with a misbegotten political morality, Trump is failing, badly, because he is vainly running on a certain marketplace morality, compatible with his temperament, that once won him money and attention. It’s what he knows; it is what he is comfortable with.
The Governing Crisis and Legal Problems: The Russia Investigation and the Inevitability of a Special Prosecutor
If this governing crisis is not exactly like Watergate, it has generated similar issues of obstruction of justice committed in the protection of the President and his aides or adviser’s legal interests. One aspect of the response, then, must be assuring the independence of the Russia probe inquiry.
The news reports yesterday that Mr. Trump asked Director Comey to drop the Flynn investigation has settled the question of whether Deputy Attorney General Rosenstein should appoint a special prosecutor. He must. We now have two apparent instances of credible allegations, one made by the President against himself, that he intervened to influence the course of an FBI inquiry. In one instance he was acting to protect himself; in the other, he was asking that Flynn be let off the hook.
Moreover, the whole Justice Department leadership is implicated in these interventions. At first, the White House claimed that the Department brought the recommendation for Comey’s dismissal to the President. Then it was revealed that the President directed the firing and the senior leadership, through Deputy Attorney General Rosenstein, supplied the rationale, except that the President thereafter gave a reason—his frustrations with the Russia inquiry—not reflected in the Department’s recommendation. The Department credibility, and thus its independence in this matter, is hopelessly compromised.
The White House appears to believe that the nomination of a credible FBI Director is a sufficient answer to the concerns about this independence. But the Director is not a prosecutor—the very point that the Administration disingenuously relied upon in explaining its dismissal of Mr. Comey. The FBI operates under the supervision of the Department leadership and that leadership has now lost any hope it might have that it would, on the question of independence, receive the benefit of the doubt.
Other Aspects of the Governing Crisis
On other issues presented by the Mercurial Presidency, which arise in governance from day to day, other institutions, and the Congress, will have to take on more responsibility. The courts seems to be prepared to do their part, as they have in reviewing the chaotically devised and implemented travel restrictions. The press cannot be said to be resting easy. The Congress, however, must be prepared to show more courage and energy, and this is a burden that the President’s own party must shoulder.
There is some indication that even members on the President’s side of the aisle may be rousing themselves to take responsibility in this governing crisis. They could approach the task in a manner comparable to “broken window” policing and work their way through the various manifestations of dysfunction. Cleaning up here and there, doing what they can to solve the obvious problems, they can help minimize the chances of spreading executive branch paralysis and breakdown.
The White House Staff and the Structure
There have been suggestions that the congressional leadership, beginning to display frustration if not panic, may be prepared to demand the addition of more experienced personnel and institution of more rigorous process within the White House. This would be helpful, certainly in limiting the risks of the President possibly mismanaging communication of sensitive intelligence information. But it is not enough.
The President’s Business Interests
Some of what Congress can do is relatively straightforward: the Emoluments Clause invites congressional participation, by providing for congressional consent—or its denial—to foreign government payments for the benefit of a president. The courts may declare that any issue of the Clause’s application is a political question and leave it up to the Congress to act. How would Congress then respond? Or might it act beforehand? Or only after a scandal? The Congress could act, as it should, to provide the necessary oversight of the organization of the Presidents business interests. It can compel by negotiation and, if necessary, legislate, the adoption of remedies to the evident weakness in the structure that Mr. Trump’s lawyers have erected.
The President’s Tax Returns
The same is true of the President’s refusal to release his tax returns—a refusal all the more remarkable especially because of the complex, questionable “trust” in which his business interests have been organized and the questions raised about financial ties to Russia. Congress can act to impose an appropriate transparency requirement. Instead, the President has asked, and the Congress has let stand, a discretionary procedure in which Mr. Trump’s own lawyers disclose what he and they have concluded is sufficient information for this purpose. While an ongoing criminal investigation will certainly result in the subpoenaing of those records for the use in an investigation, there is a public interest as well in identifying undisclosed conflicts that bear directly on the conduct of foreign policy.
And even a problem like the tweeting, which is hardly amenable to legislation, might also be informally but effectively be tackled by committed, responsible congressional leadership. It has the formal and less formal means of persuasion: sources of pressure in the management of the President’s legislative agenda, control over the pace and confirmation of appointments, and the structure and content of the hearing schedule. If Mitch McConnell would like to have “less drama” out of the White House, he can certainly come up with a few ideas for getting to that goal.
When Nixon's woes had spilled over and the time had come to end it, Republican congressional leaders personally brought him the message. Yes, the strongest hand they could play for him was all-out resistance to impeachment. But the power to impeach is not the only power Congress has; it is not the only means available to bring more discipline and fidelity to the demands of this office to this White House. Waiting for consensus that we have another “Watergate” is too long a wait, and it may be only a part of the question that needs to be asked about the governing crisis engendered by the presidency of Donald Trump.