Accountability at Cooper Hewitt, in contrast with the White House

Sandy Levinson

The New York Times has a fascinating story today about the insistence by the Smithsonian Institution that the director of the Cooper Hewitt Museum in New York be dismissed because of highly debatable allegations of conflicts of interest relative to the purchase of her wedding dress and then the venue of her wedding.  For obvious reasons, I'm not competent to assess the validity of the complaints other than to say that the Times article certainly provides grounds for doubt and curiosity about why the Institution is so adamant, given that the Cooper Hewitt Board is happy with the now ex-director's leadership.  But the real point of this posting is that we now seem to live in a world where it is only the President of the United States who is held unaccountable for behavior that increasingly draws scrutiny and discipline with regard to even high executives of other organizations.  The lout in the White House famously proclaimed, upon taking office, that the laws of conflict of interest don't even apply to him, so that it is irrelevant that he is clearly flouting, at the very least, the spirit of the Emoluments Clause and conflict of interest statutes.  (Of course, Josh Blackman and Seth Tillman have provided legal analyses that the Emoluments Clause simply doesn't apply to the President at all, an argument I'm certainly not persuaded by, though I don't regard it as "frivolous" in a way, say, that is true of Alan Dershowitz's argument about Trump's ability to do anything and everything he thinks benefits his election prospects.)  And, equally "of course," it would be easy to go through the Wall Street Journal and find multiple stories about business executives who have been fired or turn to the sports pages and find stories of coaches who have been suspended, with or without pay, while further investigation of allegations takes place.  There is, I continue to believe, something profoundly wrong with this picture.
The only real defense of the special treatment accorded the President appears to be an almost literally insane reliance on "the voice of the people as the voice of God," so that elections become the exclusive mechanism for holding presidents of the United States accountable.  (No one seems to suggest that Boeing should be have waited for the next shareholders meeting to fire their own chief executive.) Perhaps there should be a special dispensation during election years" that would make us especially reluctant to remove presidents in the last year of their term.  However,  I think that is ultimately indefensible if in fact one has good grounds, as we do, to fear the demented instability of an incumbent.  But I think it is truly idiotic as an argument for a president in say, the first or second year of his/her term, unless we simply want to give up, as I fear that is increasingly the case,  and accept the the notion, propagated by the DOJ, that the most important office holder in the land is unaccountable to any genuine legal or institutional constraints.

I also increasingly believe that the only real answer is to get rid of the presidential system entirely, via my constitutional convention.  It is not that parliamentary government is perfect; that, too, is an idiotic assertion.  But, all things considered, it presents fewer dangers than does presidentialism.  As Max Weber presciently suggested a century ago, Caesarism is built into the DNA of modern presidentialism. Donald Trump merely makes that clear to all but the terminally ignorant (and deplorable).  But one should acknowledge that Barack Obama's campaign in 2008, when I happily supported him over Hillary Clinton, also had a healthy supply of Caesarism, with its large Trump-like rallies and vacuous promises.  And I continue to be genuinely angry at Bernie Sanders, the ostensible "revolutionary," for his resolute (and therefore demagogic) unwillingenss to address the fact that the constitutional system itself makes his pie-in-the-sky promises almost truly irrelevant so far as their actual enactment is concerned.  Though perhaps a Sanders presidency would foment a genuine revolution when his gullible admirers come to realize that not even Bernie can turn the sow's ear that is our constitutional system into a silk purse.

Needless to say, I don't expect anything to come of such criticisms, not only because we inexplicably venerate a truly flawed Constitution, but also because Article V, coupled with our general distrust of popular democracy, makes the idea of a constitutional convention repugnant to most "thoughtful" Americans (including my wife, friends, and professional colleagues).  So, as with Corvid-19, we all have to hope for the best and ignore the fact that there may be relatively little we can do to avoid the pandemic.

ADDITION:  One new point:  We would not be having the conversations we are about the degree to which the Attorney General is merely a lackey and lickspittle of the President were we living in the system found in roughly 45 of our states, where the Attorney General is not an appointee of the governor.  (In Tennessee, the AG is appointed by the state Supreme Court.)  One doesn't have to go all the way to a parliamentary system in order to "unbundle" at least the control that presidents exercise over the Department of Justice.  As Steve Griffin suggests in his thoughtful post below, Barr's paean to DOJ "independence" puts paid to the most truly extravagant theories of the unitary executive, but I certainly don't trust the lickspittle Barr to be anything other than the faithful servant of his master, even if he would prefer fewer tweets.  90% of the American states offer a model--call it, if you wish, "a little laboratory of experimentation"--in how to achieve genuine independence.

UPDATE:  According to the New York Times, six trustees of Cooper Hewitt have resigned to protest the removal of Caroline Baughman.  The official rationale offered by the basically silent Smithsonian Institution is that she violated its conflict of interest rule, which says that "employees must not engage in private or personal activities that might conflict, or appear to conflict, with Smithsonian interests...."  (emphasis added).   I note that the "appearance" standard is notoriously subject to abuse.  Appears to whom?  It requires no evidence at all of actual conflict, so long as someone with power can say "well, it looked like a conflict to me."  Let that go, though, and assume that her acceptance of a wedding dress for $800 (though the designer said that it was far simpler than the one advertised on the Web for $3000) was a conflict.  Continue to ask yourself why the lout in the White House, not to mention the lout who is our Secretary of  Commerce, and the loutish children who  "advise" their loutish father are not treated with any similar sort of scrutiny.  One rarely sees such obvious evidence of the sheer arbitrariness of public standards.  It is no surprise that fewer and fewer people have any regard for what is sometimes called the "rule of law" as an operating ideal (instead of mystifying ideology) in our system.   
Posted 1:06 PM by Sandy Levinson [link]