Trump, Democracy, and the Constitution

At the Philadelphia Convention of 1787, Elbridge Gerry, a delegate from Massachusetts, warned against too much democracy. The people, he stated, were “the dupes of pretended patriots” and were “daily misled into the most baneful measures and opinions by the false reports circulated by designing men.” Two hundred and thirty years later, Gerry’s concerns—which most of the framers shared—were vindicated: the American people elected a president who disdains basic tenets of democracy.

Democracy depends on norms, some written into the Constitution, others implicit in it. Donald Trump regularly disparages or repudiates at least ten of these norms: (1) an independent judiciary; (2) the freedom of the press; (3) the presence and function of independent actors within government; (4) the peaceful resolution of political disputes rather than the encouragement of violence; (5) the acknowledgment of the legitimacy of election results and recognition of the sanctity of the right to vote; (6) a refusal to threaten legal prosecution against political opponents; (7) the condemnation of brutal foreign dictators; (8) a respect for transparency within government; (9) a sharp separation between the private and public interests of governmental officials; and (10) at least a minimal commitment to the truth. These norms are essential to American democracy, yet Trump routinely violates them.

Trump has attacked sitting judges in a manner unique among American presidents. During the presidential campaign, he denounced Judge Gonzalo Curiel, who was then presiding over a lawsuit against Trump University for allegedly defrauding students. Trump called Curiel a “Mexican” and said that his actions were “a total disgrace.” (The judge, in fact, was born in the United States and has lived all of his life here; his parents were Mexican immigrants). After the election, Trump characterized Judge James Robart—the federal district judge, appointed by President George W. Bush, who invalidated Trump’s first executive order restricting immigration from several predominantly Muslim nations—as a “so-called” judge. He called the federal circuit court that affirmed Robart’s order “disgraceful.” Trump also urged supporters to blame the federal judiciary for the next domestic terrorist attack: “Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. . . . If something happens blame him and [the]court system.” While many past presidents have criticized particular judicial decisions—Roe v. Wade, for example—Trump directly assails the legitimacy of individual judges.

Trump’s statements also express disdain for the freedom of the press, which Thomas Jefferson called “one of the great bulwarks of liberty [that]can never be restrained but by a despotic government.” Since his election, Trump has castigated mainstream media for their “fake news.” He has also characterized reporters of the New York Times and other news organizations as the “enemy of the people.” The president has intimidated reporters he deems unfriendly by tweeting criticisms of them, calling for them to be fired, and inciting crowds to threaten violence against them. At one Trump rally, Secret Service agents had to escort NBC reporter Katy Tur to her car after Trump whipped up a crowd against her. After a Fox News commentator criticized Trump’s response to the white supremacist rally in Charlottesville in August 2017, she received hundreds of hostile emails calling for her to be fired and making death threats.

Trump also does not acknowledge the legitimacy of independent power sources within the government. As one of his first acts in office, Trump asked the director of the Federal Bureau of Investigation, James Comey, for his loyalty. The FBI director owes loyalty to the U.S. Constitution, not the president. Trump has ridiculed his attorney general, Jeff Sessions, for recusing himself from the Department of Justice’s investigation into allegations of collusion between the Trump campaign and Russia, even though Session’s recusal was clearly mandated by the department’s internal rules of ethics. Trump has repeatedly threatened to fire special counsel Robert Mueller for conducting a “witch hunt” against him.

Just before leaving on a trip to southeast Asia in November 2017, Trump declared, “The saddest thing is that because I’m the President of the United States I’m not supposed to be involved with the Justice Department, I’m not supposed to be involved with the FBI, I’m not supposed to be doing the kinds of things I would love to be doing and I’m very frustrated by it.” This is a remarkably candid confession of the president’s disdain for independent actors within the federal government, on whose existence the system of separated powers depends.

The president has repeatedly countenanced violence or urged his admirers to commit acts of violence; by doing so, he has repudiated another central tenet of democracy. At political rallies during his presidential campaign, Trump urged supporters to “knock the crap out of [protestors],” expressed a fondness for the “old days” when a protestor would be “carried out on a stretcher,” and offered to pay the legal expenses of anyone who perpetrated violence against protestors. In August 2016, Trump hinted that if President Hillary Clinton attempted to replace Justice Antonin Scalia with a gun control supporter, “second amendment people” might find a way to prevent it. In a July 2017 appearance on Long Island, Trump encouraged the police to be “rough” with criminal suspects.

Trump may be the first candidate in history to question the legitimacy of a presidential election before it took place. At a campaign event in New York in October 2016, Trump said, without presenting any supporting evidence, “They’re letting people pour into the country so they can go and vote.” After one of his debates with Hillary Clinton, when asked if he would accept the election results if he lost, Trump said, “We’re going to have to see. We’re going to see what happens.” At a subsequent debate, he declared, “I will keep you in suspense.”

Probably as a result of such statements, 50 percent of Republicans said before the election that they would not regard Clinton as a legitimate president if elected. Presidential historian Douglas Brinkley told the New York Times at the time, “I haven’t seen it since 1860, this threat of delegitimizing the federal government, and Trump is trying to say our entire government is corrupt and the whole system is rigged. And that’s a secessionist, revolutionary motif. That’s someone trying to topple the apple cart entirely.”

Soon after his inauguration, Trump appointed a Presidential Advisory Commission on Election Integrity (only recently disbanded), which critics believed, with good reason, was actually a voter suppression commission. The president has repeatedly claimed that three to five million illegal votes were counted in the 2016 election, costing him a victory in the popular vote. Half of Republicans believe that Trump won the popular vote, and nearly three quarters of them believe that voter fraud happens frequently, when, in fact, experts agree that it almost never happens. One nonpartisan academic study examined a data set of one billion votes and found thirty-one instances of voter-impersonation fraud. Here’s a worrisome fact: in response to this question—“If Donald Trump were to say that the 2020 presidential election should be postponed until the country can make sure that only eligible American citizens can vote, would you support or oppose postponing the election”—52 percent of Republicans said they would support delaying the election.

In banana republics, elected officials sometimes throw their political opponents in jail; democracies frown upon such a practice. Yet during the presidential campaign, Trump promised, if elected, to prosecute Hillary Clinton. In the second presidential debate, Trump declared, “If I win, I’m going to instruct my attorney general to get a special prosecutor to look into [Hillary Clinton’s] situation, because there’s never been so many lies, so much deception.” A minute later, Trump said to Clinton that if he became president, “you’d be in jail.” Charles Krauthammer, a conservative commentator, observed, “Vladimir Putin, Hugo Chávez, and a cavalcade of two-bit caudillos lock up their opponents. American leaders don’t. . . . It takes decades, centuries, to develop ingrained norms of political restraint and self-control. But they can be undone in short order by a demagogue feeding a vengeful populism.”

In the past few months, as Trump’s approval rating has reached record lows for a president this early in his first term, Trump has again called upon the FBI to resume its investigation into Clinton’s emails and the Uranium One “scandal.” The Justice Department has told Congress that senior prosecutors are looking into whether a special counsel should be appointed to investigate Clinton. Crowds at Trump’s recent rally in Pensacola, Florida, revived campaign-rally chants of “lock her up.” Why lovers of democracy are not up in arms in protest is difficult to fathom.

In addition, Trump has regularly professed what can only be described as a bizarre admiration for foreign autocrats. Philippine president Rodrigo Duterte—who has ordered the murder of thousands of drug dealers and users and has bragged about murdering some of them with his own hands—is doing an “unbelievable job,” according to Trump. The president openly supported the election in France of the neofascist candidate Marine Le Pen. He offered a congratulatory phone call to Turkish strongman Recep Erdoğan—who has jailed thousands of political opponents and journalists—after Erdoğan was declared the victor in a fraud-riven referendum that conferred vastly expanded executive powers upon him. Trump has called Vladimir Putin of Russia a “strong leader” and expressed admiration for his 82 percent approval rating. When it was pointed out to Trump that Putin has had his political adversaries murdered, Trump responded, “There are a lot of killers. We have a lot of killers. Well, you think our country is so innocent?” One might easily imagine another U.S. president being impeached for such a statement. While many American presidents have allied the nation with foreign autocrats for foreign-policy reasons and declined to criticize the human rights violations of United States’ allies, it is hard to think of another president openly admiring the very characteristics that define autocracy.

He is the first presidential candidate in forty years not to release his tax returns. Trump promised during the campaign that he would release them after an audit by the Internal Revenue Service was completed, though since the election his spokespersons have made it clear that he will never do so. The White House has refused to release visitor logs, making it difficult to figure out which lobbyists have spent time there. Trump gave only one solo press conference in the first year of his presidency; President Obama had given eleven by that point in his administration. Democracy depends on transparency; it enables the electorate to become informed. This is the least transparent presidential administration in modern history.

Democracy also depends on public servants pursuing the public welfare and not their own private concerns. To a degree unprecedented in American history, Trump has declined to recognize that separation of interests. Foreign nations and their embassies, such as Bahrain and Azerbaijan, have booked events at the Trump Hotel in the District of Columbia, which charges

$225 more per night than similar luxury hotels in the city. Conservative think tanks book administration officials to speak at events at the Trump Hotel, as do lobbyists representing the interests of foreign nations. The Trump Organization, which initially said that all hotel profits resulting from visits of foreign officials would be donated to the U.S. Treasury, has explained since the election that requiring such guests to identify themselves would be impractical. The president’s Mar-a-Lago resort in Palm Beach, Florida, doubled its initiation fee for new members to $200,000 immediately after the election.

During the presidential campaign, Trump bragged of doing tens of millions of dollars in business with Saudi Arabia over the past couple of decades. For example, at a 2015 rally in Alabama, Trump noted that the Saudis “buy apartments from me. They spend $40 million, $50 million.

Am I supposed to dislike them? I like them very much.” In his first year in office, Trump sided with Saudi Arabia in its dispute with Qatar, against the advice of his Secretaries of State and Defense and notwithstanding the fact that the United States’ largest military base in the region is in Qatar. The United States also remained largely silent while Saudi Arabia apparently kidnapped the president of Lebanon and created one of the world’s worst health and famine crisis in Yemen. In November, Trump attended a meeting with President Duterte of the Philippines; also in attendance was Duterte’s trade envoy to the United States, a Filipino real estate developer, who also happens to have partnered with Trump in a $150-million-dollar luxury tower.  Americans should not to have to worry about whether important foreign policy decisions are being influenced by the president’s business dealings.

Lastly, the president appears to be, to quote Ted Cruz, a “pathological liar.” Trump lies about small things: the size of the crowd at his inauguration; the weather at his inauguration; whether local dress shops sold out of inaugural gowns; and whether the leader of the Boy Scouts called to congratulate him on the (remarkably inappropriate) speech he gave to the Boy Scouts Jamboree in West Virginia. But Trump also lies about big things that matter: whether he supported the Iraq war before he opposed it; whether murder rates in the United States are at a fifty-year high; whether President Obama wiretapped Trump Tower during the election; and whether Obama was born in the United States. The Washington Post has calculated that Trump made over two thousand false or misleading claims, more than five a day, in his first year in office.

It is not clear whether democracy can succeed without a commitment to minimal truth telling by political leaders. Yet, despite the president’s ubiquitous lies, 89 percent of Republicans believe him more than they believe CNN, which apologizes for its mistakes and fires its reporters when they make really bad ones.

It is noteworthy that of these ten norms of democracy that Trump has regularly violated, only a few are textually enshrined within the Constitution. The First Amendment protects freedom of the press; the independence of the federal judiciary is, to a certain degree, secured by Article III of the Constitution; and the separation of the president’s public and private interests is guaranteed, in measure, by the Constitution’s Emoluments Clause (which, ironically, Trump has arguably been violating since his first day in office).

The Constitution says nothing explicit about many of democracy’s most important norms. It does not, for example, require that the president generally speak the truth or refrain from celebrating foreign dictators. It does not prohibit the president from delegitimizing elections before they take place. Most Americans may be surprised to discover that even fundamental tenets of our democracy—such as the Justice Department’s independence from the president’s whims and the maintenance of a modicum of transparency in the operations of the executive branch—have no explicit grounding in the text of the Constitution.

Norms ensconced within the Constitution generally carry with them fairly obvious remedies for their violation. For example, were Trump to shut down an NBC affiliate for broadcasting “fake news” about him, a federal court would presumably issue an injunction to reverse such executive action. However, there are no obvious sanctions—other than public opinion or possibly impeachment for the most egregious transgressions—for the president’s violation of norms not enshrined in the Constitution. When Trump lies about Obama’s wiretapping of Trump Tower or celebrates Duterte’s “unbelievable” job of dealing with the Philippines’ drug problems by murdering drug dealers and users, the only recourse lies in public opinion, which is a slow-acting and imprecise remedy.

It has taken decades to build up norms such as the independence of the Justice Department from the president and the freedom of political rivals from criminal prosecution by a hostile administration. Prior to and during Richard Nixon’s presidency, no such norms existed, or else they had been systematically violated. Nobody knows how fragile such norms are or how many more decades it would take to reestablish them once they have been shattered. In addition, many democratic norms have developed out of considerations of political reciprocity. If Republicans use their temporary control of government to shut down Democratic newspapers or throw Democratic politicians in jail, they can probably expect Democrats to do the same once they return to power. Such considerations may explain the existence of norms such as constraints on the criminal prosecution of one’s political adversaries. Once reciprocal norms have been violated, however, the likeliest short-term outcome is an escalating arms race, rather than a quick restoration of the norm.

Consider an illustration from a recent norm violation in a different sphere, the U.S. Senate. In 2016, Senate Majority Leader Mitch McConnell “stole” a Supreme Court seat from Democrats with his unprecedented, year-long refusal to hold hearings on President Obama’s nomination of Judge Merrick Garland. Were Democrats to take control of the Senate in the 2018 midterm elections, what are the chances they will confirm a hypothetical Trump nomination to the Supreme Court? I would bet the odds are a lot higher that Democrats, once they regain control of Congress and the presidency, will pack the Court to achieve the majority control that McConnell, in violation of norms, managed to deny them.

Democracy, once achieved, is not inevitably secured, as recent developments in Poland, Hungary, Turkey, and the Philippines confirm. Neither is democracy a spectator sport. Democracy in the United States is facing its greatest threat since the Civil War in the form of the Trump administration. People need to wake up and face the music.

Michael Klarman is the Kirkland & Ellis Professor at Harvard Law School and an OAH Distinguished Lecturer.