Constitution holding its own against Trump

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If you pushed all your chips in on the notion that Donald Trump’s presidency represents an existential challenge to the Republic, America’s persistent stability must be irritating. Rather than confront this conundrum, gamblers like New York Times opinion writer Charles Blow has discovered a novel way to get around American resilience: pretend it doesn’t exist.

“America, as we knew it, is lost,” Blow opens his latest column. “[I]t is certainly true now that Donald Trump has tested our institutions and our constitutions—both government and personal—and found them all wanting, found them all weak, found them all vulnerable to the ravaging.”

Even a sympathetic reader with a visceral distaste for Donald Trump’s comportment and conduct, both in and out of government, would have a difficult time supporting such a claim.

The American judiciary hasn’t buckled before Trump. It has repeatedly forced him to tailor his populist ambitions to correspond with the confines of executive power codified in law and in the Constitution. If anything, Trump’s populist impulses have repeatedly dashed themselves against the rocks of American institutions, humiliating the administration in the process.

The voters haven’t been sidelined by Trump. They turned out in record numbers for a midterm election to deliver a powerful rebuke of his presidency, demonstrating that the public has not become complacent even amid strong and sustained economic growth.

Even the Congress hasn’t caved to Trump, although it has had some pretty bleak moments. Notable among them was its failure to roll back the president’s reckless assumption of emergency powers to build his border wall despite a substantial number of Republican defections. But the supine Congress is a problem that predates Trump, and it’s one that did not trouble Blow until this administration. Still, the legislature is not entirely supplicative. Even the Republican-dominated 115th Congress routinely dismissed, dodged, or checked the president’s worst impulses. And as Robert Mueller’s report demonstrated, Trump’s own inner circle routinely defied him, thwarting his efforts to subvert the independent investigation into his 2016 campaign.

Blow cites William Barr’s Wednesday testimony before the Senate Judiciary Committee as an example of institutional failure, presumably because he believes, like Nancy Pelosi, that Barr misled the committee under oath. If the House Speaker truly believes that the attorney general committed a “crime,” her chamber is free to pursue impeachment, contempt, or even to recommend perjury charges. If the Democratic House caucus declines to pursue these remedies, it’s not because they’ve been handcuffed by a tyrannical president.

Blow adds that “Trump elevated the coarsest constituencies of the party,” including racists and xenophobes, to prominence within the GOP. I’m inclined to agree that Trump’s reckless rhetoric gave the right’s most toxic elements the impression that their views were less marginal than they are, but the conduct of Trump’s administration should disabuse them of this notion. Just this week, the four members of the white supremacist group responsible for engaging in much of the violence in Charlottesville pleaded guilty to federal conspiracy charges. The prosecution and conviction rate for hate crimes by the U.S. Justice Department remains consistent with rates predating the Trump administration, and the DOJ and National Institute for Justice have committed to increased funding for and dedicated research on hate crimes.

Blow insists that America is “too dependent on custom” to thwart the will of a determined demagogue. “America naïvely believed that the presidency was for honorable men,” he wrote, “that the president of us would always in some form be the best of us.” Anyone who believed that is a civic illiterate. The Founders didn’t believe that. Constitutional checks on presidential excesses, though strained by partisan politics and the willingness of legislators to sacrifice influence in pursuit of fame, have not been dissolved or circumvented.

Blow cites the difficulty of removing this president from office by means of impeachment as an example of American administrative decay. But subverting the will of the voters in a duly constituted election is supposed to be an extraordinary remedy for extraordinary conduct.

Finally, we learn why Blow has so misrepresented the state of American affairs. His intention is to argue against Democratic prudence. Caution, he warns, is “antithetical to excitement,” and Democrats shouldn’t risk the 2020 election on a candidate they think is likely to win. They should risk it, instead, on a candidate who would be transformative in office. “[T]he best time to truly rebuild a thing is when it has been destroyed,” he declares. Blow’s morose assessment of America’s political landscape isn’t empirical but utilitarian. The goal is to convince his fellow progressives to take a chance on a radical, not restorative, antidote to Trump.

Donald Trump does represent a unique challenge to what the late Charles Krauthammer deemed the “guardrails of our democracy.” And though we are not out of the woods yet, American institutions are holding in part because they are so resistant to the kind of radical change Blow advocates, albeit in a subversive column ostensibly lamenting radical change.

The Democrats are confused. This week, Judiciary Committee Chairman Jerold Nadler declared that the United States had entered a period of “constitutional crisis.” The Trump administration’s general contempt for congressional oversight authority had brought the country to the brink. Nadler called the administration’s behavior a “blatant abuse of power,” but when pressed about the remedies the House of Representatives planned to pursue to address this “crisis,” he ruled out impeachment. That, Nadler said, would “not be the best answer in this constitutional crisis.”

So, following the chairman’s logic, impeachment is not a viable (if undesirable) remedy to the current “constitutional crisis,” and there are other ways for the House to resolve the current impasse? If so, then this particular “constitutional crisis” isn’t a crisis at all. It is a confrontation between the branches of government, in which the executive has arguably exceeded its authority, and the legislature can appeal to more than one means of seeking redress spelled out in … the Constitution.

The Trump administration’s gambit here is a risky one. No doubt, the White House has decided that it’s best strategy ahead of the 2020 elections is to drive its opponents insane, even if that means challenging constitutional conventions like cooperating with congressional investigators.

By treating Congress’s request for information relating to the 2020 census with the same disdain he has for Congress’s calls for his personal tax returns as a private citizen, the president has sacrificed the ability to argue against discrete abuses of legislative power. Donald Trump is characterizing all uses of legislative authority as abuse, even its most legitimate functions. The power of congressional inquiry knows limits, but Trump’s failure to cooperate with its implied oversight authority leaves Congress with one last resort.

By closing off Congress’s capacity to oversee the workings of the administration, the White House is knowingly forcing Democrats to pursue an impeachment inquiry under the assumption that the process will redound to its political benefit.

But none of these scenarios exist outside the legal parameters established in the Constitution. The prospect of one branch’s infringing on another, necessitating even extraordinary corrective measures, was not beyond the Founder’s comprehension. The crisis Nancy Pelosi and her fellow Democrats are dealing with isn’t constitutional but political. The remedy for presidential excesses constituting a violation of behavior that is prescribed in law is right there in Article 1, Section 2. She just doesn’t want to pull the trigger.

Pelosi’s rationale for wanting to avoid impeachment is perfectly prudent. It falls on Congress to make the case against the president—an all-consuming communications challenge that robs Democrats of the opportunity to argue for their legislative priorities. More problematic still, it steals the public’s focus away from the party’s presidential candidates, placing it instead on the unpopular and fractious House of Representatives. But because the speaker of the house can’t be honest about her efforts to herd the Democratic Party’s restive base voters down a more productive path, she, too, is blaming the Constitution for her current predicament.

Donald Trump does represent a test of America’s governing institutions. One day, the country may very well face a threat to its constitutional framework. When that day comes, it would be valuable if Americans still believed their elected officials when they sound the alarms. At the rate at which these officials are sacrificing their credibility, that seems like an unlikely scenario.