Every day, President Donald Trump or his minions say something stupid, wrong, or demonstrably false. Most days, these people threaten to take illegal actions. Some days, they make good on their lawless threats.
And yet, they are still in power. Trump, his family, and his sycophants get help from the Russians (whether willfully or not) to influence our elections; obstruct justice; engage in corrupt practices; violate constitutional principles; intimidate witnesses; ignore Congress; and lie as if “Falsehood” was their native tongue. And yet they seem to get away with all of it.
Nobody stops them. Yes, the Republican Party has shown itself to be a collection of craven hypocrites, so utterly debased from wallowing around in Trump’s filth that they can’t even remember what decency smells like. But if you’ve been paying attention, Republicans have always been like this. Just ask Merrick Garland. Our system shouldn’t be so weak that the perverse noise makings of Mitch McConnell and Lindsey Graham can scuttle the very concept of the rule of law.
No, Trump gets away with it not just because the Republican Party and its white-supremacist base wills it so. Trump gets away with it because the legal system insists on treating him as a “normal” president of the United States.
Presidents aren’t “normal,” of course. Their office is imbued with awesome powers. This president uses those powers in illegal, corrupt ways. We’ve had presidents who’ve tested the limits of executive authority before, but this guy acts like the limits are “fake news.” Addressing the abnormal use of incredible powers with normal processes is like trying to sop up a flood with a mop.
The clearest casualty of this oxymoronic thinking was Robert Mueller. When confronted with clear evidence that President Trump used every tool in his arsenal to try to obstruct justice, Mueller decided that the normal thing to do was: to not charge or recommend charges against the president, and instead submit his report to Trump’s handpicked guard dog masquerading as an attorney general. What did Mueller think was going to happen? Justice? These people are criminals—how many times do we have to be shocked by their willingness to take lawless action?
It’s not just Mueller, or former deputy attorney general Rod Rosenstein, or current FBI director Christopher Wray who hide behind “the book” instead of using the book to inflict some blunt-force justice upon this administration. Judges and justices have also insisted that Trump be treated as a normal (yet still presidential) litigant and apply normal standards to his outrageous behavior.
Don’t get me wrong: Most courts have ultimately been resistant to the idiotic legal claims Trump throws at them. His administration has been unsuccessful in court on a historic scale. His attempt to end the Deferred Action for Childhood Arrivals (DACA) program was stopped cold. Judges have desperately tried to end his child-separation policy. Despite Trump and McConnell’s relentless efforts to stack the courts with Trump-friendly judges, the courts have held up pretty well so far.
But, man, are they slow. Trump attacks the rule of law at Twitter speed; courts rebuff him on a preindustrial timescale. It’s like trying to swat a maniacal wasp with a musket ball.
The nature of the legal process itself helps Trump delay reckonings even when he has no case. The law is the ultimate example of “both sides–ism”; it prides itself in putting even dumb and ridiculous arguments on equal footing with factual and rational analysis. It’s not enough to know something to be true; the law makes you prove it. It gives the other side every opportunity to argue their fanciful points. It’s the proverbial worst system, except for all the others.
In the same way a cancer takes advantage of the cell’s own reproductive machinery to infect the system, Trump is using the courts’ respect for the rule of law to destroy the rule of law.
Can Trump assert executive privilege after he’s already waived the privilege? No. Can Trump declare a national emergency to steal money not appropriated to him by Congress? No. Can he order his cabinet to ignore congressional investigations? No. Trump should lose all of these legal battles, but our court system will let him take all the time he needs to make his facially stupid arguments. And then let him appeal in search of other judges who owe their position to his benevolence.
When the Supreme Court eventually gets around to ruling “Congress is still a thing” (assuming that Chief Justice John Roberts isn’t fully comfortable with American monarchy), some institutionalist will crow, “The system worked!” Trump, meanwhile, will have committed more crimes by then. He’s running a chop shop where he reaps the profits from your car before you even realize it was stolen.
It doesn’t have to be this way. Justice doesn’t move swiftly, but it can when it perceives a unique threat to justice itself. For instance, the Richard Nixon administration sued to halt the publication of the Pentagon Papers on June 14, 1971. The Supreme Court lifted the injunction on June 30. That’s justice moving at tachyon speed. Or how about the time Nixon tried to ignore a subpoena for his tapes? The subpoena came down in April. The Supreme Court unanimously ordered Nixon to hand them over by the end of July. Nixon resigned and continued to fight for his tapes as a private citizen, where he was afforded all of the delay a normal citizen is entitled to. See, if we treat Trump like a normal criminal president, we can hold him accountable.
There are signs that some judges get that Trump is a unique threat. The Trump Organization has sued to prevent its accounting firm, Mazars USA, from complying with a congressional subpoena for some of Trump’s financial information. In an aggressive order, Judge Amit Mehta has decided to hear the case in an expedited fashion and make a ruling on the substance of the Trump Organization’s claim instead of first allowing it to engage in a lot of procedural delay.
Every judge should be acting like this. Every Trump case should be on a fast track. He’ll win some and he’ll lose some, but the sheer volume of unprecedented actions from this administration demands a unique response from the courts.
But we know that law enforcement and the courts generally won’t treat Trump as unique, and I fear that we, the people of the United States, are the ultimate problem.
What do we do that suggests we are facing a unique threat to democracy and the rule of law? Bitch and moan on Twitter? Write columns? Donate money? Vote? That’s what I do, and it’s all kind of normal, isn’t it? As I said to my wife on election night 2016: “If I make it through four years of this mother[jumper] without getting arrested, I didn’t try hard enough.” Well, it’s been three, and here I still sit behind this useless keyboard, without being so much as fingerprinted.
Everybody wants to see the “un-redacted” Mueller report, but nobody is outside of Bill Barr’s house right now demanding that he release it. Chief Justice John Roberts could be sitting right next to you as you read this, and most of you wouldn’t notice him, and those that do wouldn’t scream, “I can’t believe you voted for the Muslim ban, you accomplice to bigotry!” right in his face. The “resistance” should be near revolt, but instead we’re dithering about whether the normal process of impeachment is “worth it.”
The courts will regard Trump as a unique threat to the normal operation of government just as soon as we make the normal operation of government impossible while he reigns.
People know the start of the Frederick Douglass quote “Power concedes nothing without a demand.” But most forget how the passage ends: “The limits of tyrants are prescribed by the endurance of those whom they oppress.”
How does Trump keep getting away with it? Because we let him.