The Real Constitutional Danger

Jack Goldsmith
Tuesday, February 14, 2017, 8:27 AM

It is more than a little amusing, in light of the events of the last week, that we still see concerns about whether “we’re in a constitutional crisis” due to excessive presidential power, and about “how much … the early days of the Trump administration look like the Third Reich,” and about how the United States is part o

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It is more than a little amusing, in light of the events of the last week, that we still see concerns about whether “we’re in a constitutional crisis” due to excessive presidential power, and about “how much … the early days of the Trump administration look like the Third Reich,” and about how the United States is part of a global movement on a downward spiral toward “repressive kleptocracy.” The real story in the last week, and indeed of the Trump presidency, is (as predicted) how well our constitutional checks and balances are working in reaction to an unorthodox, norm-breaking, law-indifferent President. It is increasingly clear that the main danger in a Trump presidency is not that it will be too strong, but that it will be too weak.

In November I argued that “the permanent bureaucracy, including inspectors general and government lawyers; the press; civil society; Congress; and courts … will operate in much more robust fashion to check President Trump than they did to check President Obama,” and that “Trump’s seeming indifference to the rule of law and his pledges to act unlawfully will cause the checking institutions to judge all of his actions with much greater scrutiny and skepticism.” That is precisely what has happened. Consider just a few events:

The Flynn resignation

The Flynn resignation was the consequence of two vital checks on the presidency. First is the “powerful permanent bureaucracy in the intelligence and defense communities that transcend administrations” and that consists of individuals with “deep expertise, trans-administration interests and values, and deft infighting skills that enable them to check and narrow the options for even the most aggressive presidents.” These officials have been pushing back against Flynn (and Trump) since November, most recently (at least before Flynn's resignation) in their refusal to grant a security clearance to one of Flynn’s closest deputies. The Flynn resignation never would have happened absent leaks by “current and former U.S. officials” in numerous agencies and the White House that laid out the whole tawdry affair, at least as we know it thus far. Given Trump’s manifold heresies, it is not surprising that “national security leaking, already widespread, [would] increase a lot under Trump” since the “vast majority of the permanent corps in the intelligence and defense bureaucracy [are] on edge to ensure that Trump does not violate the law or their values (and, ultimately, their institutional self-interest), and it will leak at the slightest hint of illegal action.”

Nor is it surprising that the Press—the second checking mechanism here—would report on these matters robustly. We’ve heard a lot of drivel over the last few months about how accountability journalism would be chilled by Obama’s leak prosecutions and by Trump’s threats and tweets. Predictably, the exact opposite has happened. New York Times subscriptions and Lawfare eyeballs are at an all-time high, and reporting on the presidency and national security in these and many other venues is more robust than ever. Far from being cowed, the press has clearly been “emboldened to report on [Trump’s] national security actions even more aggressively and skeptically than they did under Bush.” The reporting that brought down Flynn is one of many examples.

Finally, perhaps the most important thing we learned from the Flynn resignation is that the White House and the President are subject to political shame. When I wrote about the manifold internal and external checks on the presidency in Power and Constraint, I assumed without reflection that every presidency would be responsive to credible critical journalism and attendant political outcry. Trump’s aggressive dismissal of traditional journalism and his indifference to many political norms have made me wonder whether and to what degree his administration would respond to scandal and public outcry. The jury is still out on this, and one might believe that the White House saw Flynn’s real evil as lying to the Vice-President, not scheming with the Russians. Nonetheless, one of the comforting elements of the Flynn matter is that the White House cared about public opinion. As Chris Cillizza notes, the Flynn resignation shows that “some of the old rules of Washington politics still apply,” namely: “Embarrassing the big bosses has major ramifications. Sacrificial lambs must be offered.”

The Immigration Order

The immigration Executive Order was first received as proof positive of the Trump administration’s descent into authoritarianism. And when the Washington federal District Court issued its nationwide TRO, my twitter feed and instant messages were aflutter with the possibility that Trump would defy the court and spark a constitutional crisis. But of course things are turning out rather differently. Newly cash-rich Civil Society groups “pull[ed] out the stops in monitoring and constraining the new President,” most notably by bringing numerous claims in federal courts almost immediately after the Executive Order was published. The federal courts, in the face of personal threats from the President, ruled sharply and broadly against the President in an area where the President has enormous legal discretion and typically receives near-complete judicial deference. The Executive branch, far from defiance, has complied with these judicial decisions and is reportedly considering a rescission of the Order and issuance of a new and better one.

Black Sites and Waterboarding

Late last month a “draft of a Trump administration executive order” that “raised the prospect of reviving C.I.A. “black site” prisons like those where terrorism suspects were once detained and tortured” was “circulated … among National Security Council staff members for review.” I explained at the time why I thought this would go nowhere—the law and intelligence community culture had changed a lot since 2002, many in Congress on both sides of the aisle opposed a return to 2002, and many of Trump’s senior cabinet officials had testified that a return to waterboarding was unthinkable. A few weeks later, the White House “backed off for now on its consideration of reopening overseas 'black site' prisons, where the C.I.A. once tortured terrorism suspects, after a leaked draft executive order prompted bipartisan pushback from Congress and cabinet officials.” The fact that the administration is even hesitating about where to send a captured al-Qaeda fighter, and is considering federal court rather than GTMO detention, shows how widespread these influences will be.


As the bipartisan pushback from Congress on the draft interrogation Executive Order shows, the Republican-controlled Congress will not be a lackey for the President on issues it cares and disagrees about. We have seen similar bipartisan pushback in the announcement of an investigation into Russian interference in the election by the Senate Judiciary Subcommittee on Crime and Terrorism, and at least the beginnings of bipartisan pushback into White House ethics failings. These early and serious countervailing pressures from the Republican Congress are unusual, to say the least. “Normally we would expect a President whose party controlled Congress to get a free ride from Congress,” I wrote last November, but we can expect and indeed are seeing “much less obeisance from Congress toward Trump, who has a fraught relationship with Republican Party politicians, to put it mildly.”

* * *

In these and many other contexts, including foreign policy contexts (one-China policy, moving the U.S. embassy to Jerusalem on January 20, and sanctions against Russia over Ukraine), we have seen numerous norm-breaking initiatives or tendencies by the Trump administration checked or moderated by actors and institutions inside and outside the Executive branch. The presidency is not out of control. We are not descending into authoritarianism. Far from it.

That doesn’t mean things won't go terribly wrong. I continue to worry about (among other things) the impact of the President’s tweets and rhetoric on international relations, and I especially worry about how the president will respond in a crisis.

But these days I am more worried about—and I think we should all to some degree be worried about—a too-weak Trump presidency. Arthur Schlesinger Jr. is (as usual) quite right when he says that “The American Constitution … envisages a strong presidency within an equally strong system of accountability.” The accountability system is working in overdrive; it is the presidency I am worried about. As Schlesinger explained:

A governing process based on the separation of powers among three supposedly equal and coordinate branches has an inherent tendency toward stalemate and inertia. One of the three branches must take the initiative if the system is to move. The executive branch alone is structurally capable of taking that initiative. The Founding Fathers intended that it should do so. “Energy in the Executive,” said Hamilton in the 70th Federalist, “is a leading character in the definition of good government.”

The U.S. government cannot work well to respond to society’s many complex problems—many things that need to get done cannot get done—without a minimally staffed, well-organized, energetic, and competent Executive branch. Right now we don’t have such an Executive branch.

We also need a strong, competent, well-organized Executive branch to keep us safe from threats abroad. Weakness and disorganization and uncertain fortitude in foreign and defense policy invite aggressive actions from adversaries. I have confidence in Mattis and Tillerson. But I also have little doubt that there is a connection between the President’s reckless foreign policy tweeting, his attacks on the intelligence community, and disarray in the National Security Council, on the one hand, and the recent North Korean and Iranian missile tests (among other recent provocations), on the other. Weak presidencies enhance the likelihood of a foreign policy crisis that weak presidents are ill-suited to redress, and indeed that often bring out the worse in a weak president—especially one who is thin-skinned, uninformed, and impulsive.

I’m not yet panicked about the too-weak Trump presidency (though I am more worried about it than I am about a too-strong Trump presidency). I continue to hope that as senior cabinet officials assume office and as their departments get staffed and running, the influence of the seemingly reckless White House staff will recede, and we will see more competence and stability in the government. In that light, the unsteady Flynn’s resignation is very much a step in the right direction.

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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