Balkinization: Trump as President (Part I)

Trump as President (Part I)

Stephen Griffin

So, constitutionally speaking, how bad could it be? I will divide my answer into three parts: creative ways in which Trump could exercise the formal powers of the presidency; what recent experience tells us about how he could exercise the presidency’s informal capacities; and the relation of politics to the exercise of constitutional power. In general, I think the answer turns on how we understand what the Constitution is and (my favorite topic) the process of constitutional change. I’m going to start in the middle, with what could happen on the informal front. One more distinction – I’m focusing on the possibility of questionable constitutional means, not ends.

Some scholars have voiced the opinion that a Trump presidency wouldn’t be that bad. Although Trump may have an authoritarian style, the thinking goes that he is no Hitler and, in any case, has to work under the same constitutional structure as every president. One thinks of the Truman-Eisenhower anecdote, the one in which as he is leaving office, Truman remarks that Eisenhower will get frustrated at his orders not being followed. It’s certainly a fair point that the executive branch is not the military writ large.

Nonetheless I beg to differ with the “no big deal” position, but on what non-armchair basis? Consider that theories of the “small-c” constitution are popular these days. Our Constitution is said to have a significant small-c component, which works much like the British “unwritten constitution” model, riding alongside the more familiar “big-C” text.

But consider the implications of having a “small-c” or practice-based Constitution for Trump's case. If the Constitution has a significant “small-c” component, it becomes much harder to claim that Trump could not change the constitution, that he has to work under the same structure as any president. For one thing, anything he does potentially constitutes a new “precedent,” a new moment for constitutional law. Normally I’m against thinking about these issues in terms of “practice,” (a pretty vague notion!) but I’ll leave that aside. My present point is that the reality that we have a Constitution of practice means that Trump’s choice of possible means goes well beyond what Article II says. In fact, in terms of history, we’ve had a lot of experience along this line. Presidents who operate outside the box show us that constitutional norms and institutions people of the time thought were fixed in fact have hidden fault lines that can produce rapid change. We can all think of examples – I assume Jackson, Polk, Lincoln, and both Roosevelts would qualify.

In fact, Trump’s campaign has recently encouraged a Nixon 1968 analogy. As probably many readers appreciate, this is not a normatively attractive comparison. Still, constitutionally, what's the issue? Well, perhaps you were thinking that Watergate came in Nixon’s second term? As I argue in my book Long Wars (it’s standard stuff with historians of Vietnam), Watergate in fact grew out of Nixon’s first term vision of himself as a beleaguered war president surrounded by domestic unrest that amounted to terrorism. That is disturbingly relevant to how Trump sees the world today.

But let's get more specific. In terms of the constitution of practice, what could happen?

Assume that Trump wants to pursue Policy X in foreign affairs. I use a foreign affairs example because presidents have more leeway there as a historical matter. Imagine further that Policy X is opposed by the State Department, the Defense Department, and the military. Trump (and any other president) has the alternative of turning to the intelligence community, especially the CIA. In a way, the CIA was set up to facilitate this possibility, in that it was created not to be independent, but rather to be responsive to the president. Now you may recall that Nixon was rebuffed when he turned to the CIA after the Watergate burglary (although Richard Helms and the agency paid a price as a result). But Nixon had already invented the alternative means of having the White House staff “go operational” in terms of the Plumbers. That’s also roughly what happened during Iran-contra in terms of the ability of the NSC staff to go around the established bureaucracy. If the president so wishes, the White House and NSC can function to an extent to parallel the operations of the regular line agencies in foreign affairs.

To be sure, there are things the White House cannot do on its own. I assume, for example, it can’t run a massive technically complex surveillance operation of its assumed enemies. But of course the NSA can and I think we’ve learned quite a bit from the Bush II administration about the forces that can be brought to bear on the relatively fragile legal structures that currently preserve a level of agency independence from a misguided president. I don’t think intelligence agency officials would be in a robust position to disobey presidential orders unless they were directly contrary to law. They could resign of course, that’s what nearly happened in the confrontation between President Bush and James Comey when AG Ashcroft was in the hospital. So quite a bit depends on who Trump appoints to the AG’s office. Yet even so, there are always theories of necessity, emergency and so on. There’s a lot of bad that could happen before the whistle blowers sprang up.

Some scholars believe the executive branch has fairly robust internal checks. I tend to agree with them in ordinary times, but experience shows these checks can fold when presidential power is applied directly. And in any case, the president always has the option of evading the checks by having the White House staff go operational. The possibilities here for mischief in the general area of military action and intelligence surveillance are just endless. We do have an informal Constitution, but it is not necessarily a tame and compliant partner to its formal counterpart. Experience has shown that the informal constitution can be in considerable tension with its “big-C” counterpart. That’s a theoretical point, but I hope you can see how this theory has big implications for what Trump could do to and with the presidency.

Posted 6:17 PM by Stephen Griffin [link]