Transition 2016

Defending Norms by Defending Norms

By Paul Rosenzweig
Monday, March 13, 2017, 4:06 PM

One of the proudest days of my life was, oddly enough, January 20, 2009.  It's the day I lost my last full-time job.  At 11:59 AM, I was the Deputy Assistant Secretary for Policy at the Department of Homeland Security and, within the scope of my authority, able to order and direct a wide-range of activities.  At 12:01 PM, I was a nobody—off on vacation and without a scintilla of authority over anyone except myself.

And that is the story of the peaceful transition of power in a democracy.  In the aftermath of the 2008 election, President-elect Obama had sent a team of people into DHS to learn exactly what was happening.  We had a series of dozens of meetings (some of which I participated in) and, per direction, everyone at DHS submitted a letter of resignation.  As the inauguration approached, the Obama team asked a few people to stay on for varied periods of time.  But, in the end, we all recognized that President Obama was entitled to his own team—and those, like me, who were not asked to stay on left.  I say this was one of the proudest days of my life because that day (and the process that preceded it) filled me with pride—pride in America and pride in our citizens, who accepted the peaceful transfer of power in a way that is, sadly, rare in the world.

I have been reflecting on this history in light of US Attorney Preet Bharara's decision to force the Department of Justice to fire him, rather than resign.  At one level, his reaction is completely understandable.  President Trump's norm-breaking behavior (including, it seems, promising to retain Bharara and then changing his mind) is, frankly, numbing and depressing.  I get why Bharara (and Sally Yates before him) might feel the need to resist.  In their positions I would feel much the same.

But, fundamentally, I think that Bharara made a tragic error for at least two reasons.  First, as a strategic matter, I firmly believe that we do not combat norm-destroying behavior (of the sort President Trump is engaged in) by further destroying norms in our own actions.  Tempting though that is, the response only puts our society in a downward spiral where each norm violation is followed by another and another. (I, for one, see this dynamic at play in the continual deviance downward of how the Senate treats judicial nominees.)  Once that spiral begins, there is no logical stopping point.  Those of us in the #Coalitionofalldemocraticforces are responsible for the maintenance of norms in ways that are, I think, truly critical to the recovery of our democracy in a post-Trump world.

Second, however, and more importantly, the norm of peaceful governing transition is perhaps the single most important norm we have as a democratic society.  Bharara's reaction was not just uncivil, though it was that.  It was far more insidious because it challenged the vitally critical norm of electoral transition by wrongly calling into question the legitimacy of President Trump's request that he resign.

Don't get me wrong—I have no brief for the President's actions.  Requesting all 46 resignations in response to a Hannity tirade is poor policy; terrible management; and evidence (if more was needed) of the President's unsuitability.  And changing your mind on a whim is mercurial and deeply troubling on its own account.  But the way to resist these kinds of norm-busting acts is not to join in the parade of redefining deviancy.  I have great respect for Mr. Bharara who was, by all accounts, a successful US attorney.  But this time, he made a mistake.  We defend norms by defending norms, not breaching them.