Donald Trump

Why Trump’s War on the Deep State Is Failing—So Far

By Benjamin Wittes
Monday, January 1, 2018, 10:00 AM

In May of 2016, when Donald Trump was still a long-shot candidate for president, I warned with some specificity about what he would try to do to the U.S. Department of Justice and the law enforcement apparatus of the United States:

The soft spot, the least tyrant-proof part of the government, is the U.S. Department of Justice and the larger law enforcement and regulatory apparatus of the United States government. The first reason you should fear a Donald Trump presidency is what he would do to the ordinary enforcement functions of the federal government, not the most extraordinary ones.

. . .

A prosecutor—and by extension, a tyrant president who directs that prosecutor—can harass or target almost anyone, and he can often do so without violating any law. He doesn't actually need to indict the person, though that can be fun. He needs only open an investigation; that alone can be ruinous. The standards for doing so, criminal predication, are not high. And the fabric of American federal law—criminal and civil law alike—is so vast that a huge number of people and institutions of consequence are ripe for some sort of meddling from authorities.

. . .

The Justice Department has some institutional defenses against this sort of thing, but they are far weaker than the intelligence community's institutional defenses against abuses. They mostly do not reside in statute or in . . . complex oversight structures. . . . They reside in the Levi Guidelines, in certain normative rules about contacts between the Justice Department and the White House, in norms that have developed over the years in the FBI. And they reside in the hearts of a lot of replaceable people.

. . .

What would a president need to do to shift the Justice Department to the crimes or civil infractions committed—or suspected—by Trump critics and opponents? He would need to appoint and get confirmed by the Senate the right attorney general. That's very doable. He'd want to keep his communications with that person limited. An unspoken understanding that the Justice Department's new priorities include crimes by the right sort of people would be better than the sort of chortling communications Richard Nixon and John Mitchell used to have.

. . .

Certainly, a bunch of pesky, scrupulous AUSAs might have to go. But that's not a problem. Make the environment hostile enough, and law firm life will start to look very attractive to them.

Yes, Trump might develop a problem with our redoubtable FBI director, who doesn't leave with the outgoing administration and has stared down a president once before. But so what? . . . [James] Comey will not be there forever anyway. And even without the FBI, and even using only the discretion it lawfully has, the Justice Department has remarkable fangs to bare when it chooses to bare them. NSA can only spy on people. Why bother with that when you can sue them?

As a statement of Trump’s aspiration, I could not—unfortunately—have been more spot-on. In the near-year he has been president, he has done or tried to do all of the things I flagged:

  • He has demanded substantive outcomes from investigations.

  • He has demanded investigations of political opponents.

  • He has raged against the norms that prevent these wishes from being fulfilled.

  • He has attacked—publicly and by name—people who have acted honorably to defend those norms.

  • He fired the redoubtable FBI director whom I flagged as an inconvenient bulwark—for precisely the reason that James Comey was functioning as an inconvenient bulwark.

  • He has harassed Comey’s management team and demanded publicly their replacement.

  • He has made the environment for those assistant U.S. attorneys committed to their jobs so uncomfortable that one literally sat in my office and told me that he was going to resign because “I don’t want to stand up in court any more and say, I’m [his name] and I represent the United States.”

  • He has appointed an attorney general he specifically intended to protect him and go after his opponents.

This is banana-republic-type stuff. One year into Trump’s term in office, his character has not changed. The president of the United States—as John Bellinger warned as early as December 2015 and as I elaborated on in March of 2016—remains the principal threat in the world to the national security of the United States. His aspirations are as profoundly undemocratic and hostile to the institutions of democratic governance as they have ever been. He announces as much in interview after interview, in tweet after tweet. The president has not changed, and he will not change. Whether he has grown or will grow is not even an interesting question.

The interesting question, one year in, is how the apparatus of democratic government is weathering his onslaught. The answer to this question is complicated but, I think, ultimately encouraging.

Let’s start with the frank acknowledgment that there has been damage and that this damage may prove severe. There is, at the visible level, the tangible damage that Trump has done to the institutions that protect national security and democratic governance as well as to confidence in the United States as a protector of democracy and, indeed, as a democratic actor on its own terms. This damage is hard to assess because a lot of it is invisible. It’s State Department Foreign Service officers who have left in droves. It’s people who went to law firms instead of becoming assistant U.S. attorneys. It’s marginal judgments made less well because of the political climate. The damage from these things is hard to measure and thus are easy to deny.

No less hard to measure is the damage Trump has done to world confidence in the United States or what it will take to restore that confidence once he is gone. I also don’t know how to assess the opportunity costs of the near total failure of policy development in his administration across a wide range of national security matters. Nor, for that matter, do I know how to evaluate the likelihood that Trump’s myriad personality defects will trigger a national security catastrophe, rather than merely the sequence of injuries (such as spontaneous disclosure of important allied intelligence programs to the Russians) and embarrassments (like his phone call with the Australian prime minister) we have seen so far. The hits taken by law enforcement and other domestic institutions have been real, but they have not yet done irreversible damage. So for right now, at least, my impression is that the tangible damage from Trump is likely substantial but also likely reparable with time and decent government of either the political right or the political left.

I am decidedly less confident about our ability to weather a less tangible form of damage Trump is doing—that is to say the damage of which he has shown proof of concept. It was only recently that the notion of a modern president of the United States openly demanding politicized law enforcement or openly saying that the job of the attorney general was to protect him from investigation was unthinkable. Even Richard Nixon, who believed such things privately and acted on them in secret, never had the audacity to state them publicly. Trump has not merely advocated for the notion of law enforcement as a mechanism of political attack; he has campaigned against those within the bureaucracy who have resisted the vision. He has adopted an active policy of institutional attack on the FBI and public discrediting of intelligence-community findings inconvenient to him on Russia. The question is whether this style of politics—or aspects of it—catches on. This may be hard to imagine if Trumpism ends in a crushing electoral defeat and repudiation. But what if Republicans outperform expectations in 2018 or Trump wins reelection in 2020 or both? What will other politicians take away then?

That is not an idle question—one germane only to future populist demagogues who may arise. Because Trump has not, alas, flown solo in this project of institutional degradation. He has brought much of his party with him. The House Republican caucus is up in arms not about L’Affaire Russe but about the special counsel’s investigation of L’Affaire Russe. The braying for Robert Mueller’s blood and for a housecleaning at the Justice Department and the FBI pervades conservative media. We have to be concerned that Trump is in the process of normalizing for an entire political movement the politicization and weaponization of law enforcement and intelligence. No, he has not yet successfully corrupted these institutions. But he has made surprising inroads in corrupting public expectations of them. That damage is hard to calculate—but it could end up being devastating.

So for right now, let’s consider the damage—both tangible and intangible—as a work in progress: non-trivial, potentially severe, but so far not catastrophic, and difficult ultimately to assess.

And despite all of that, I think we can say that, broadly speaking, the apparatus of democratic rule-of-law governance had held up reasonably well so far. Trump aspires to corrupt the Justice Department, but he has not yet managed to corrupt the Justice Department. He aspires to use the FBI to go after his political enemies, but he has not yet managed that either. He aspires to an intelligence community that will validate his premises, but he has not managed to get one. At the end of the day, Trump has not managed to shut down the Russia investigation. He has not managed to fire his attorney general or his deputy attorney general—both of whom he evidently hates. He has not even managed to rid himself of the lowly deputy FBI director, Andrew McCabe—though he so clearly wants that particular scalp—who will retire in March and not be removed before then. He’s already angry at his new FBI director, Christopher Wray.

The president is evidently incredulous about his inability to corrupt these institutions. He waxed frustrated about it, for example, in a recent radio interview:

But you know, the saddest thing is, because I am the President of the United States, I am 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 kind of things I would love to be doing and I am very frustrated by it. I look at what’s happening with the Justice Department, why aren’t they going after Hillary Clinton with her emails and with her dossier, and the kind of money… I don’t know, is it possible that they paid $12.4 million for the dossier . . . which is total phony, fake, fraud and how is it used? It’s very discouraging to me. I’ll be honest, I’m very unhappy with it, that the Justice Department isn’t going . . . maybe they are but you know as President, and I think you understand this, as a President you’re not supposed to be involved in that process. But hopefully they are doing something and at some point, maybe we are going to all have it out.

One might look at all of this as evidence that Trump is not wholly unwise, so he announces his intentions to do all sort of bad things but then ultimately does not pull the trigger on many of them. I think the better understanding is that he is, at least for now, meaningfully constrained—both by politics and by law and rules.

This is not to say that Trump has had no effect on the institutions in question. He has had an effect. At the most visible level, the effect is agency leadership that don’t effectively stand up for the rank and file. Wray is in an impossible position, as are Rod Rosenstein and Jeff Sessions. The intelligence-community leadership is too. Yet all have responded with little public institutional defense—which would necessarily require a confrontation with the president. Some, like Sessions and CIA Director Mike Pompeo—have added a distasteful dollop of active humoring of the president’s self-image. And some, like Director of National Intelligence Dan Coats, have simply vanished from public view. The result has been tolerance of the Trumpian cult of personality. And that is certainly corrosive of the rule of law from agencies that are supposed to be about rigorous facts and analysis and even-handed application of the rules.

But for now, at least, the edifice has held. All of that could change tomorrow if Trump were to demand Mueller’s removal or demand things of the leadership at the Justice Department that would provoke a crisis. To say that someone is constrained, after all, is not to say that he is entirely immobilized or that he cannot overcome his constraints. The presidency is an office of titanic power, and what look like constraints today may look very different if Trump were to feel more immediately threatened by Mueller, if he feels more secure electorally or if he sees weakness in his currently resurgent political foes. But so far, at least, the president has done nothing to the Justice Department or the intelligence community that could not be repaired.

A number of factors have contributed to the edifice’s relative durability in the face of Trump’s personality and overt aspirations.

The first is that Trump has been checked more effectively by institutional constraints than many commentators acknowledge. Jack Goldsmith has made this point repeatedly—and he is clearly correct. Congress, which has enabled Trump in many respects and been lackadaisical about confronting his worst predations, has nonetheless checked him in other ways. The Senate intelligence committee’s Russia investigation has been a serious undertaking, and the legislature really boxed in the president with the sanctions legislation it passed last year. Sessions is still attorney general because Republican senators made clear that they wouldn’t tolerate his removal. And while support for Mueller on Capitol Hill has ebbed of late, when Trump made noises about firing him over the summer senators of both parties reacted strongly. (Trump has more recently disclaimed any intention of removing Mueller.) Some of us would like Congress to do a great deal more than it is in the way of protecting institutions, but it’s important to appreciate that it has not, in fact, done nothing.

More robust responses have come from the courts, the press and the bureaucracy. The ever-present factor of Trump’s unpopularity with the public—and the resulting political mobilization of forces to oppose him—has further reduced his room to maneuver.

And then there is the Mueller investigation itself, which has kept the administration very much on tenterhooks; nobody knows what will happen tomorrow. While the president’s lawyers talk a tough game about how he’s entitled to do anything he wants with respect to managing the executive branch, they are clearly concerned about how his interactions with the investigation or the Justice Department might be seen to a group of prosecutors that is already examining obstruction-of-justice questions in connection with prior such interactions. Mueller has Trump walking on eggshells.

The cumulative impact has been an environment not all that conducive to imposing tyranny. So Trump tweets. He rails. He complains. He threatens. Yet the investigation goes on. Law-enforcement activity continues more or less as usual—there being plenty of assistant U.S. attorneys who are still willing to stand up in court and say that they represent the United States. And while the president’s machinations have some impact, of course, they have far less impact than one would imagine they should in an executive branch meant to be unitary. This is part of a far broader pattern of the executive branch ignoring its titular head, who is increasingly isolated within it.

This brings me to a final factor that has protected the country and its intelligence and law-enforcement apparatus from Trump’s tyrannical aspirations: Trump’s personality.

The first few weeks of the Trump administration raised the question of the degree to which Trump’s malevolence would be tempered by his incompetence. In the first year of the Trump presidency, the answer to that question was that incompetence did a lot of tempering. Trump blundered from crisis to crisis. The lawyering around him was comically dreadful—as was the broader executive functioning. Taking on established democratic institutions and wrecking them actually takes a certain amount of focus and energy—and Trump just isn’t very good at it. His heart may be in it, but Vladimir Putin he isn’t. And the United States isn’t a fragile new democracy with weak institutions either.

Trump has another personality liability for the project at hand, one that fewer people notice: He is ultimately a wuss. He talks about his boldness all the time, and a lot of people—including his enemies—lap up the self-description. He likes to talk in sweeping, grandiose terms about the things he is going to do and the things he has done. In practice, however, he’s actually very cautious most of the time. Think about it this way: Leaving aside Trump’s words and claims about himself, do the actions of his first year in office generally bespeak boldness? Yes, he left the Paris Climate Agreement. And yes, he recognized Jerusalem as Israel’s capital. And yes, he did the travel ban. But think about all of the bold things Trump has promised and backed away from: scrapping NAFTA and waging a trade war against the Chinese, ditching the Iran deal, walking away from Europe, draining the swamp, and confronting conservative orthodoxy on taxation.

The boldest step Trump has taken, the firing of James Comey, was an accident. Trump actually appears to have believed that this move would be popular, because Comey had angered Democrats during the 2016 campaign. Most of Trump’s supposed boldness is just tweets and bombast and things he says. It’s a big part of his self-image, but the self-image is mostly a game of dress-up. When push comes to shove, he’s pretty paralyzed by circumstances much of the time.

Taking down an established democracy requires not merely words but also bold action. And paralysis won’t cut it. A genuine attack on American democratic institutions will require some heavy swings of a sledgehammer at a very well-built wall. And with one great exception, nothing Trump has done in his first year in office has really taken pieces out of that wall.

What’s that one exception? It’s Trump’s efforts to hollow out the bureaucracy. As the Washington Post reports, it’s not just the State Department that he’s gutting:

Nearly a year into his takeover of Washington, President Trump has made a significant down payment on his campaign pledge to shrink the federal bureaucracy, a shift long sought by conservatives that could eventually bring the workforce down to levels not seen in decades.

By the end of September, all Cabinet departments except Homeland Security, Veterans Affairs and Interior had fewer permanent staff than when Trump took office in January—with most shedding many hundreds of employees, according to an analysis of federal personnel data by The Washington Post.

This effort sweeps far more broadly than simply impacting the institutions of national security and law enforcement under the rule of law. It’s about governance as a whole. But it may be a more effective—precisely because it is less visible—means of attacking what the Trump forces offensively term the “Deep State” than all of the high-profile attacks on law enforcement and intelligence leadership.

All of which is to emphasize that we are emphatically not out of the woods. The situation remains dangerous, because Trump’s personality is so fundamentally incompatible with the nature and demands of the office he holds. His impulsiveness can get us into trouble any day. As his political situation, or his legal situation, continues to degrade, he could lash out and change the equilibrium at any time. Moreover, chipping away at institutions slowly, both by institutional and budgetary evisceration and by leadership attrition—one Chuck Rosenberg a few months ago, one James Baker last month, one Andrew McCabe in March—will take a big toll over time.

But Trump simply cannot look back on the last year and be satisfied with the success of his war on the Deep State. His battle to remake it in his image has been largely unavailing—and has come at far greater cost to his presidency than to the institutions he is trying to undermine.

And that is very good news.