Trump, the Rule of Law, and Normalization
Even incredibly abnormal Presidents are Presidents.
Yesterday, I highlighted the Justice Department’s decision to continue seeking to stand in for former President Trump in a defamation suit. While initially gobsmacked, I defended this decision after reading the DOJ explanation.
University of Washington political scientist Scott Lemieux vehemently disagreed over at Lawyers, Guns, & Money, in a post titled “SPENDING TAXPAYER MONEY IN DEFENSE OF AUTHORITARIANISM IS NO VIRTUE.” But his only explanation beyond the headline is “There are legitimate prerogatives of the presidential office. This isn’t one of them.”
The link takes us to a column from last October by Barbara McQuade, MSNBC Opinion Columnist, arguing that blanket immunity from defamation suits for Presidents is a bad idea. This is a perfectly reasonable position which some OTB commenters, including regular HarvardLaw92, took in the comments section yesterday.
But that isn’t the DOJ’s call. They had to decide whether Trump’s speech was made in the performance of his presidential duties and whether, therefore, to take the case on behalf of the United States. A federal appeals court, and quite possibly the United States Supreme Court, will ultimately decide the question of whether the speech was made in his official or private capacity.
Lemieux’s co-blogger, University of Colorado law professor Paul Campos, has a more interesting take in a piece entitled “PRETENDING THAT WHAT’S HAPPENING ISN’T HAPPENING.” It begins with approvingly reposting a reader comment from Lemieux’s post that declares, in part,
I guess all I can come up with is that the Democrats have basically submitted to Trump. Not that they want him to win or be President, but the large majority of elected Democrats have all agreed to act like he was normal, real, legitimate. They don’t see any need or desire to act like there’s a real threat there. He was just a President.
[…]
We talk all the time about how we can’t let Trump be normalized, but he has been. And the highest levels of Democratic governance are not just letting it happen, but actively abetting it.
To which Campos adds,
Basically, what we have here is a bunch of Very Serious Institutionalists who are arguing about whether the kitchen backsplash should be switched out. They’re having this argument even though a fire is spreading rapidly through the house, because it’s a lot less disturbing to argue about backsplash options than to contemplate the prospect of being burned alive, and then maybe trying to do something about it.
As to what to do about that, I too am short on bright ideas, but a good first step would be for people like Merrick Garland and his boss to stop pretending that Donald Trump and the Republican party (a distinction for the moment without a difference) aren’t actively trying to destroy the United States.
Yes I realize that in the abstract a “politicized” DOJ is a really bad thing. A worse thing is when someone is trying to literally kill you and you keep trying to get them to appear at an Aspen Institute panel moderated by David Brooks.
So, I will cop to being a Very Serious Institutionalist. I left my political party and voted for my least-favorite-ever Presidential nominee from the other party in 2016 because I thought Donald Trump would be a very bad President. I underestimated just how bad a President he would be. But, at the same time, I thought and continue to think that he was the legally elected President and therefore had all of the powers, rights, and privileges that came with that office.
I supported his impeachment and removal from office over the Ukraine affair although, frankly, I thought it among the lesser transgressions of his oath up to that point. I voted for his 2020 opponent. I supported his second impeachment for inciting the 6 January Capitol riots and was chagrined but not shocked that he wasn’t removed for it.
But none of that, frankly, has anything to do with the matter at hand. Trump was an abhorrently abnormal President but he was, nonetheless, still President. Either a President’s speech in office constitutes official speech or it doesn’t. While I think it would be a bad idea, I’m amenable to being persuaded that we should change the rules prospectively to make future Presidential statements that defame citizens subject to private lawsuits.
Regardless, saying that a rape accuser is lying about the rape and implying that she’s undesirable to boot is not an emergency situation requiring retroactively changing the rules. Indeed, Trump is currently an ex-President with absolutely no power aside from whatever influence he still wields with Republicans. Making him subject to one particular private defamation suit will have next to no bearing on whether he’s re-elected in 2024.
If one believes Trump and his party are “actively trying to destroy the United States,” it actually makes sense to double down on upholding the norms they are trying to destroy. And the rule of law should be at the top of the list.
OT, but Trump appears to be goose stepping in the photo accompanying this post.
The thing is that the DOJ’s decision is to not to uphold, but rather to violate the very principle of the of rule of law.
The DOJ is in effect arguing that there is no difference between the office of President and the person of President – in the same way that this distinction is absent in the case of a hereditary monarch.
Even if there is a law on the books stating that this distinction does not exist (which is doubtful to start), that doesn’t mean that the rule of law (as a principle) is being upheld. Laws can violate the rule of law, for instance if the law allows secret trials.
An imperial, semi-monarchical presidency violates the rule of law regardless of what is, in fact, on the books.
So yeah, Campos et al. are completely right. Especially a president such as Trump should not be shielded by the discretionary elements of the (semi-)imperial presidency.
I think Judge Kaplan said it best:
“…while commenting on the operation of government is part of the regular business of the United States, commenting on sexual assault allegations unrelated to the operation of government is not.”
The original article itself should be read, as it draws parallels to how the German Weimar Republic normalized the transition to Nazi fascism.
We have lost normal on the national scale.
With the numbers of people that belive in Anti-vax magnetism, Q child vampirism, and 1/6 denialism… we have a real problem on our hands.
Sadly, with such money to be grifted from these rubes, there are many that will gladly sell them the air time, attention, megaphones, t-shirts, banners, shaman buffalo horned hats, Trump flags, hotel space, and of course guns, bullets, bear spray and tear gas… because capitalism loves to cash in on a trend.
We have midterm politicians lining up to gladly run on the crazy platform, as they know the more extreme their comments, the greater their incoming donations.
Imagine Congress following that midterm election: Marjorie Taylor Greene leading the new crazy caucus of anti-vax, anti-science, anti-everyting, with fervent followers demanding the reinstatement of Trump.
We are well beyond the slippery slope.
One good note: those who believe that the former President will be restored in August at least have not assigned a specific date to their fever dream delusions. If they do, prepare for another violent misguided rally with greater firepower.
James, in addition to the above comments, this just more rachet.
The next GOP president can and will start at Trump, and work downward. Some of the peculiarities and personal nastiness of Trump might not be there, but most of the personal nastiness will remain, along with far, far more competent official evil.
@Liberal Capitalist:
I intentionally skipped that comparison (from the commenter, not Campos directly) because it’s historically wrong and takes us down an unuseful diversionary path.
@drj: @Daryl and his brother Darryl: I think it’s possible that DOJ is leaning too heavily into the idea that a President’s comments in the Oval are inherently official, even though I think they’re probably right. But, again, the courts are the right party to make that call.
@Barry:
I don’t really know what to do with that hypothetical. What does it even tell us about the matter at hand? If we elect an asshole President, then we have an asshole as President.
@James Joyner:
“But, again, the courts are the right party to make that call.”
The whole point is that the DOJ exists to put pressure on the judge; they’ll have a bunch of lawyers doing their d*mnedest to make that case.
“I don’t really know what to do with that hypothetical.”
Treat it like the highly likely thing it is, rather than hand-waving it away.
Conduct your analyses and debates as if what has been happening has happened, rather than an aberration which can be dismissed in the name of ‘institutionalism’, which seems to mean ‘closing the curtains and ignoring the outside world.
” What does it even tell us about the matter at hand? If we elect an asshole President, then we have an asshole as President.”
And ‘A is A’ and ‘Brexit is Brexit’. The *whole point of our alleged institutions* is to restrain an assh*le President.
This decision is of a piece with Qualified Immunity and the growing tendency to insulate government officials from accountability and the consent of the governed, no matter how outrageous their actions.
In this regard, yes it is very similar to how aristocracies work, where there is a privilege, a “private law” established for those who hold power.
Everything Trump is attached to is basically through the looking glass x 19.
Is eating a quarter-pounder an“official” action of the President? How about becoming COVID positive?
Clearly these are human, personal actions and have no link to presidential duties or official government actions.
The DOJ trying to argue otherwise ( re Trump’s personal remarks) appears to be cover for some other issue. Failure to argue the real issue before the court is simply dishonest.
@James Joyner:
I have this fantasy that the DOJ is only going along with this so that when the hammer comes down on the former guy their track record doesn’t look like they’ve been biased against him all along.
Again, that’s just a fantasy.
They are never going to actually go after the former guy.
The justice system is designed to kill people for selling single cigarettes, not for punishing corrupt politicians.
@Daryl and his brother Darryl: A class protected by the law but not bound by it.
@Chip Daniels:
This. When I read:
I had a similar thought.
Informal power is still power to wield. Whether an institutionalist wants to admit it or not, the GOP since Gingrich has exposed serious problems with the system. Really, it it exposes flaws in the philosophical tradition that inspired the system.
The flaw is that so many of the principles rely on good faith, public and private. But citizens and conglomerates have power and capabilities that go beyond what any Enlightenment thinker could conjure for the State in their wildest fever dream.
The truth is whether Trump himself knows whether he is lying or not. He probably has abused countless women so is he really defaming someone when he simply does not recall?To put it in another way, Trump is literally insane. So maybe there is a duty to defend insane presidents since everything they say and do as every action is related to the presidency? I don’t know: welcome to Rome, America.
I commented last week on the worry that if in ‘24 we get a D win with close elections in the wrong states, legislatures, or the election officials they’re pressuring, will reverse or decline to certify, throwing the EC to the R. I noted that Doug had already opined the military would be OK with it because it would be legal. And added that James would be OK with it as long as democracy was overthrown in proper form.
@gVOR08:
He would say that it would be for the courts to decide.
The fact that McConnell has been packing the courts by systematically blocking judicial nominations by Democratic administrations is, of course, unfortunate, but that was in accordance with the rules, too.
So it’s all terribly unfortunate, but there is really nothing to be done.
That is an odd kind of way to explain the current situation. Trump holds immense power since the influence he wields with Republicans has one of the two major parties in the US in thrall to him and his alternate universe. As Liberal Capitalist notes, Republican politicians are aligning to the Trumpist brand of crazy and state legislatures around the country are passing voter suppression laws premised on Trump’s Big Lie.
I only wish a couple of smart, mindful, conservative Institutionalists had even an iota of that kind of power. It might save the country.
DOJ actions could also be proactive on the reasonable premise that henceforth the GOP will be all-in on harassing (D) presidents with multitudinous spurious allegations.
@charon:
And to head off this possibility, we make all presidents untouchable (future Trumps included)?
That doesn’t sound like the best of plans.
I agree with this post.
For me, the importance of clear standards that apply to all holders of an office is essential to the legitimacy of governance, especially in cases where the officeholder is particularly bad, such as Trump. It’s those cases where the standards become more important, not less.
Furthermore, if the standard proves to be problematic, then change the standard. Creating special case exceptions to the standard on a case-by-case basis is a bad idea for a number of reasons, not least of which is the question of who gets to decide when it’s a special case. The folks at LGM have a very different perspective on what constitutes a special case than other relevant and interested parties.
And, as the one who penned this editorial, and one of the main contributors to this website, that is your right.
However, my bringing up that you chose to NOT include what was the main thesis of the original article is well within my right… unless/until I get banned, of course.
Having read that same article late last night, I found that it echoed my own comments from Tuesday’s blog: That we are already well on our way to a decent into fascism.
Our next election will continue to normalize the insane, because there are large parts of the country that firmly believe that Trump had the election stolen, Covid is a lie, vaccines cause death, the world is 6000 years old, and that guns are the only solution to Washington DC’s problems.
Democrats (believing that government works) will continue to try to negotiate with them on the way down, to no avail; but as the article states will continue to use the systems and processes in place as the “conservative” electorate descends further into madness. At some point, people finally admitted that Trump lied… how long until we finally cut off the microphones of the crazy at town halls when those GOP elected officials are afraid of loosing the crazy vote.
(Seriously, a Dr. in Ohio has a following that states that Vaccines cause magnetism in the human body… that metal keys will stay stuck to peoples foreheads. I mean really??? We trust these people to drive and spend time with children?)
We are already to the point that attempting to negotiate with the GOP in congress is about as useful as reciting poetry to a telephone pole.
Oh, if only Vogon poetry actually existed, and I could get 30 minutes of Mitch McConnel’s time…
@Bob@Youngstown:
Obviously that depends on the context.
If the President, in his capacity as President, is inviting people to the White House, and is feeding them fast-food… the quarter pounder is an official Presidential Quarter Pounder.
Similarly, if the President, in his capacity as President, is downplaying covid risk, claiming it is a fraud, sowing discontent, and setting a bad example by refusing to wear a mask or let the people around him wear a mask… then that is clearly Official Presidential Covid as a direct result of the administration’s policy provisions.
We live in the stupidest timeline.
Someone aught to inform the DOJ that “Princeps legibus solutus est” actually only holds in the very narrow situation of a ruler and his written will and testament. Even the Romans didn’t go along with it in general.
The idea to involve the DOJ was a load of crap when Barr headed that department, and it remains a load of crap even if Garland is for it.
I think DOJ defending a decidedly imperial understanding of the Presidency is a poor choice and, also, a bad look.
@CSK: How perception differs. I thought that the fact that he looked like he was goose stepping was WHY the picture was chosen. Hmmm…
@James Joyner: “I intentionally skipped that comparison (from the commenter, not Campos directly) because it’s historically wrong and takes us down an unuseful diversionary path.”
Late again and as usual, but hearing the argument in support of this statement would be enlightening, at least to me. No dog in the fight, but also not willing to accept this assertion at face value simply because you–or anyone else for that matter–said it. I also realize that the explanation is probably too long to give time to.
ETA: For me, the reason for the hypothetical is because approximately 47% of the electorate seems predisposed to electing an asshole as the next President if given the chance and the correct letter after his or her name.
@Gustopher:
“CONTEXT” –
My point is that the sitting president is always and continuously acting as a person (as in always a human being) but that same sitting president is not always and continuously acting as the President of the United States.
As a rather crude example, while defecating he is surely acting as biologic being rather than the act of the President of the United States. (otherwise I would expect that his feces should be collected by the National Archives)
In the instant case, was his alleged defamation the action of the President conducting official duties or was his alleged defamation the retort of a pissed-off human.
@Just nutha ignint cracker:
That could well be. I tend to understate, sometimes–purely for effect.
As I commented on the LGM post, this is a strange issue on which to base an argument that Merrick Garland is “normalizing” Trump. In the broader scheme of things, it’s trivial. For all we know, Garland might regard it as highly desirable to get some judicial precedent established about the legal principles involved, just in case Joe Biden gets sued for saying something insulting about someone he dealt with as a private citizen.
@Just nutha ignint cracker: Essentially, the whole notion that the Nazis won power through the normal democratic process and then gradually expanded it in abusive ways until it became a totalitarian dictatorship is a myth.
@James Joyner:
One could quibble with certain words in this statement (i.e. “normal,” “democratic,” and “gradually”), but the fact remains that the Nazis came to power in a legal manner. It was a situation in which the rules were followed (nominally, at least), but the underlying norms were broken.
That particular aspect, at least, is presently being repeated in the US.
So no, the historical analogy is not wrong, as you claim.
@Just nutha ignint cracker: Hey, give the man a break. It can’t be easy to goose step with heel lifts.
Remember when Trump – right from the start, even before his inauguration – was engaged in all manner of unethical and corrupt activity, and Barr’s DOJ reminded everyone that the appropriate constitutional remedy to Trump’s open corruption was through Impeachment? Republicans took a look at this (twice) and said, ‘okay, we got this one, no problem.’ AND we’re still not doing anything about Trump’s lawlessness.
Next we will find out Trump’s IRS went after progressive 501 (c3) groups and the FBI used a FISA warrant to spy on the Lincoln Project/John Weaver.