Executive Branch

What If Trump Were Still the President?

Alan Z. Rozenshtein
Tuesday, March 8, 2022, 9:56 AM

Because Donald Trump had the good fortune of avoiding a major foreign-policy crisis during his four years in office, the United States never experienced the worst-case scenario of a Trump presidency.

Vladimir Putin and Donald Trump at the 2019 G20 Osaka Summit (Official photo by the Russian Presidential Press and Information Office; www.kremlin.ru)

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Because Donald Trump had the good fortune of avoiding a major foreign-policy crisis during his four years in office, the United States never experienced the worst-case scenario of a Trump presidency. Although he arguably set the stage for major foreign policy crises, including the current one in Ukraine and last year’s disaster in Afghanistan, none of them came to a head during his administration. Rather, all of his scandals and misadventures, even the disastrous initial response to COVID, were fundamentally about domestic policy and politics, and thus the public was buffered from Trump’s worst instincts by other institutions—from the courts to Congress to the states. So it’s sobering to ask, as the Russian invasion of Ukraine grinds on: What if Donald Trump were still president? Given the unexpectedly close margins of the 2020 election, this thought experiment is not a farfetched one, and it raises uncomfortable questions about the powers and duties of the presidency in our constitutional system.

A key tension in U.S. constitutional law is the extent to which the presidency should be understood in personal terms—that is, whether the executive power is vested in the president as a particular individual or instead in the presidency as an institution that transcends any individual officeholder. A system in which the executive power is controlled entirely by the president’s will threatens to undermine the Founders’ goal of “a government of laws, and not of men.” On the other hand, a president excessively constrained, either by others in the executive branch or by Congress and the courts, might lack the necessary “energy” and “dispatch” that Alexander Hamilton argued was key to a “vigorous executive.”

Nowhere is this tension starker than in foreign and military affairs. The Constitution contemplates that, in domestic affairs, Congress will play the primary role and the president will merely work to ensure that the laws are “faithfully executed.” But it gives the president a co-equal, if not the leading, role in foreign affairs, making the president both diplomat and commander in chief. Courts mostly stay out of foreign policy. Congress, though it has substantial constitutional responsibilities over funding the military and authorizing the use of force, has increasingly ceded its foreign-affairs responsibilities to the executive branch, which can act more quickly and with more coherence than our dysfunctional, gridlocked, and polarized legislature. 

And although the president has numerous advisers and an extensive diplomatic and military bureaucracy, the president has the final say over foreign policy decisions, up to and including the most consequential decision imaginable: the use of nuclear weapons. There are no foreign-policy analogues to “independent” executive branch agencies like the Federal Reserve, which exercise vast domestic policy powers and are shielded from direct presidential control. Harry Truman’s famous “the buck stops here” sign on his desk in the Oval Office applies in its purest form to foreign affairs—morally, politically, and legally.

The upshot is that no amount of legal or bureaucratic checking can compensate if the president lacks what might be called executive virtues: those personal qualities that are necessary, for the proper functioning of our constitutional system. What are these virtues? Here’s a start, at least as it pertains to foreign affairs: loyalty to the nation above one’s personal or political interests, recognition of one’s responsibility to deal with problems that one neither caused nor expected, and the judgment to act prudently but also decisively. These are more than just “nice to haves;” to the extent they are necessary for a president to effectively function as commander in chief, they should be as seen as constitutional preconditions, unwritten norms that are, as a practical matter, as central to the qualifications of the presidency as are the Constitution’s explicit requirements of age and natural-born citizenship.

From this perspective, it is sobering, if not downright terrifying, to think of how Trump would have handled this current crisis, had he won in 2020. Consider first the question of loyalty. Trump’s infamous phone call with Ukrainian President Volodymyr Zelenskyy, in which he responded to the Ukrainian president’s request for more Javelin anti-tank missiles (which have proved vital for the Ukrainian defense) by asking for Ukrainian help in digging up dirt on his main political rival, betrays a disloyalty to the national interest whose geopolitical implications are now all too clear.

Nor is it clear that Trump would even feel that it was his responsibility to rally the world to confront Russia, as the Biden administration has skillfully done. After all, Trump’s response to criticisms of his administration’s early missteps in handling the coronavirus pandemic was to say “I don’t take responsibility at all.” Why expect that he would feel different about a war half a world away, or that he wouldn’t simply have delegated weighty foreign policy decisions to informal advisors, thereby maintaining distance and plausible deniability, as when Rudolph Giuliani effectively ran the White House’s Ukraine policy. Even worse, given Trump’s personal affinity for Vladimir Putin, which he reiterated even as Russian forces entered Ukraine, is the very real possibility that Trump would have supported Russia’s invasion.

And how would Trump, with his volatile temperament, his inability to absorb intelligence reports, and his susceptibility to being convinced by the last person he talked to, have responded to Putin’s putting his nuclear forces on alert? The Biden administration has chosen to respond to Putin’s provocation with calm and prudence, emphasizing repeatedly that neither it nor NATO intends to directly engage Russian forces. Would Trump, who threatened to rain “fire and fury” down on North Korea, have had a similarly measured and coherent response, or would he have impulsively acted in a way as to heighten the possibility of civilization-threatening nuclear exchange? It’s not a good sign that, in a speech on Saturday to Republican donors, Trump floated the idea of painting the Chinese flag on American F-22 fighters and “bomb[ing] the shit out of Russia.”

This nightmarish thought experiment puts into even sharper relief the stakes of the 2024 election, in which Trump may well choose to run and where he’d likely be the odds-on favorite to win the Republican nomination. At great cost to themselves, the Ukrainians have given the rest of the world an immense gift—the gift of clarity, as to the high stakes of a world in which history has loudly reasserted itself and in which the need for great leadership has never been higher. The question is whether the Republican politicians that still support Donald Trump, and the voters that may choose to bring him back into the White House in 2024, will see this gift for what it is: a chance to learn from their mistakes and avoid a second Trump presidency that could end in catastrophe of the sort that we can barely even imagine. No constitutional system of separation of powers and checks and balances, no matter how brilliantly designed, can survive if the voters keep electing presidents whose character makes them unfit to exercise the awesome powers of that office.

Alan Z. Rozenshtein is an Associate Professor of Law at the University of Minnesota Law School, a senior editor at Lawfare, and a term member of the Council on Foreign Relations. Previously, he served as an Attorney Advisor with the Office of Law and Policy in the National Security Division of the U.S. Department of Justice and a Special Assistant United States Attorney in the U.S. Attorney's Office for the District of Maryland.

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