News coverage of Donald Trump’s recent pronouncements about the criminal justice system has centered on the question of norms. He is rightly criticized for refusing to observe restraint in his comments about law enforcement. Publicly urging the Department of Justice (DOJ) to undertake specific investigations is, at best, unseemly and, at worst, a clumsy attempt to influence prosecutorial decisions. Moreover, the president’s expressed frustration over his lack of control over the Department and criminal law enforcement reveals a disturbing view of his office, reflected most alarmingly in his strident and persistent calls for legal action against his political adversaries.
The question that arises is: What precisely is the true extent and depth of the problem that his words and mindset pose? After all, if the president is annoyed with the constraints but acknowledges that he is stuck with them, then we might chalk up the outbursts to his temperament and inexperience and not worry too much. We have a corps of seasoned professionals at the helm, and they will disregard the presidential petulance and do their level best to administer the law. Trump may be straining to control the Department of Justice.expressing his wishes in real time via Twitter or in his comments on the White House lawn, but he won’t get what he wants.
Such a reading of the danger Donald Trump’s politics presents is too narrow. He is practicing demagoguery of a high order. The damage done is not contingent: It does not depend on whether he actually intends to interfere in the law enforcement process. The verbal assault on legal institutions is a fully accomplished harm, and so a warning to him to desist from future actions is one warning too late.
As the Lawfare polling suggests, the president is successfully bringing the legal process into the discredited conspiratorial ranks of the “deep state.” He is specifically stirring up suspicion of Robert Mueller, but his broadsides have a far wider focus. He has upbraided the whole system-- DOJ, the FBI and the courts-- for a series of offenses such as the failure to vigorously enforce the law against Democrats, Hillary Clinton, terrorists and Bowe Bergdahl. He is charging the system with a form of corruption and apparently making some headway with his case. Last week’s indictment and plea agreement may shift the polling to a direction more favorable to Mueller, but the support may be soft and volatile, likely to vary with the course of events.
In the meantime, what does Trump publicly propose as the remedy for the failing institutions? He offers himself. As he notoriously demonstrated in his acceptance address, Trump counts on his intended audience to see him as the “only one” who can fix the corrupt and broken system. In this self-aggrandizement lies the key to the practice of a demagogic politics. The president speaks of a movement that is built around him, not a coherent or consistent political program. He asks the public to see and appreciate above all else his special qualities. “I tend to be right,” President Trump told Time Magazine. “I’m an instinctual person. I happen to be a person who knows how life works.” Or, on another occasion, "I know what I’m doing and I listen to a lot of people, I talk to a lot of people and at the appropriate time I’ll tell you who the people are," Trump said. “But my primary consultant is myself and I have a good instinct for this stuff." Most recently, he had this to say:
But the reason our stock market is so successful is because of me. I’ve always been great with money. I have always been great with jobs, that’s what I do. And I’ve done it well, I’ve done it really well.
In other words, only Donald Trump knows what’s really going on, and so, working from his uniquely superior instincts, he can guide his audience beyond the ostensible facts into a reality he, and he alone, understands. It is a world in which institutions are of entirely secondary importance, inferior in capacities to the political leader and susceptible to corrupting influences. Demagogic argument is indifferent to facts when facts--like any other obstacle--impede achievement of his goals. An attack such as Trump’s on the Department of Justice is built on misrepresentations of both law and fact, and of the DOJ’s proper institutional role. It is also typical of such attacks that they rely on as much rhetorical force as possible to disparage the opposing points of view and those who hold them. In this way the demagogic politician exhibits his strength and his singular leadership skills. In seizing and maintaining control of the stage, he undermines the standing and functioning of institutions.
It is tempting to see the attacks on the legal system as the natural response of a president preoccupied with an investigation focused on his campaign, his associates and perhaps ultimately him. In this view, he is engaged in self-defense, as he prepares for a public defense against the special counsel and the option of firing him.
This may all be true. But Donald Trump has pursued the same demagogic plan of attack when his less personal, more political, interests have been at stake. He has assailed the courts for coddling terrorists when they ruled against him on the travel ban. He has directed the same abuse against members of his own party in Congress, including its leadership, for failing to move his legislative program. His complaint in all these cases is the same: They have disappointed him, let him down, and thwarted him. They have not done what he wanted and expected.
Contrast Trump with Richard Nixon, the two are often cited together as presidents in the throes of legal and congressional inquiries into serious wrongdoing. Nixon was busily covering up his cover-up, falsely representing to the public the facts of Watergate and his own complicity in obstruction of justice. Apart from the specific conflicts over the tapes, which Nixon defended as a concern with presidential authority, he nevertheless paid lip service to the legal system. On April 30, 1973, he told the nation:
Some people, quite properly appalled at the abuses that occurred, will say that Watergate demonstrates the bankruptcy of the American political system. I believe precisely the opposite is true. Watergate represented a series of illegal acts and bad judgments by a number of individuals. It was the system that has brought the facts to light and that will bring those guilty to justice—a system that in this case has included a determined grand jury, honest prosecutors, a courageous judge, John Sirica, and a vigorous free press.
It is essential now that we place our faith in that system—and especially in the judicial system. It is essential that we let the judicial process go forward, respecting those safeguards that are established to protect the innocent as well as to convict the guilty. It is essential that in reacting to the excesses of others, we not fall into excesses ourselves.
We can register the cynicism of these remarks, and yet Nixon believed that he should include them in his address. Nothing like this has yet to come from Donald Trump. His politics will not permit it.
Trump’s rhetoric is often criticized for “dividing the country” or exacerbating existing divides. This critique understates the course he has adopted. It suggests that he is just the most senior political actor contributing to today’s polarized politics, like the candidates or parties running misleading “negative” ads or the members of Congress refusing normal accommodations or comity to colleagues across the aisle. It assumes at most that Trump should be expected to rise above the perpetual political and social warfare and promote unity. That’s as far as the critique goes.
It is, however, in using falsehoods and vilification to sow a deep distrust of institutions, while calling for trust to be reposed instead in him and his personal “instincts,” that Donald Trump is practicing the politics of demagoguery. The polling suggests he is having an effect. While he may be drawing on the deep currents of public disaffection with government, he is whipping them up with additional force, and into unpredictable directions, with potential long-term consequences.
So it is wrong to believe, as David Rivkin and others apparently do, that Trump may have his points but needs to express them with more “politesse.” Trump cannot choose more “politesse” without basically giving up on the very political style that distinguishes him from virtually every modern president.
It is also surrenders far too much ground to take the president’s critique of the legal system seriously, and with some regret over lack of “politesse,” credit him with raising a legitimate question about the extent of the department’s independence from executive control. This misses the point. Trump is not inviting a serious discussion of this question, and the problem is not one of tone. It is far more profoundly a question of the president’s lack of respect for institutions and his belief that he can, and should, make up for their failings with his own personal leadership from “instinct.”
Finally, it is insufficient for the answer to Trump to come from retiring senators, as useful and powerful as their comments may be. An exchange of blows between Trump and his political adversaries is too easily absorbed into the daily traffic of political strife. And while they depart public life, Trump remains in place, enabling him to claim that he triumphed over them and possessed the mettle he will insist that they lacked. He will also not be put to great political disadvantage by a dispute with ex-presidents against whom he is all to glad to score political points.
The polls showing Trump’s own ratings to be historically low, even while registering success in the attacks on Mueller, offer little reassurance that the president’s brand of politics is failing. Many of his supporters have doubts about his Twitter habits and a growing segment of the public may be tiring of Trump’s combativeness and of the dreary spectacle of political gridlock amid conflict. But they may still absorb his message about the inadequacy and corruption of institutions. They may have doubts about him, but not so much about his core message.
Trump, like any politician, has achieved whatever success he has enjoyed in a concrete set of political conditions. These include weakened political parties, a widely unpopular political class that has been thrown on the defensive, and pervasive distrust of institutions. It is too much, and too risky, to believe that the effective protection of governing norms will hold under any and all conceivable conditions. We have fortunately seen, resistance to Trump (some of it even bipartisan). Yet we have also witnessed, among other events, the the FBI director’s dismissal with active support from the attorney general and deputy attorney general who collaborated in offering a disingenuous public explanation. And if the challenge of Trump’s politics is not forcefully confronted, he may be showing the way for presidents to come-- who might succeed in challenging and overcoming these norms where Trump does not.
For all these reasons, governing norms, including the norms undergirding the administration of criminal justice, require a strong, sustained, institutional defense. The courts have spoken and can continue to do so, if constrained in the manner in which they speak out. Congress--if not this Congress, perhaps the next--can communicate effectively as an institution, such as through hearings, and by resolution. The legal profession can find formal ways to be heard, and not just at the national level but also in states and communities. (It would help, too, if senior law enforcement officials did not go out of their way to defend the indefensible in the president’s words.) And of course, depending on the path that this conflict travels, the president could face sober-minded and principled calls for impeachment.
Whatever the future holds, the purpose of a concerted response now is not only to ward off a president’s intervention in the criminal justice system for his own benefit. It is to answer an extraordinary presidential attack on institutions, to mount a defense against demagoguery.