an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
the Trump presidency be normalized? Up
to a point the media are treating the Trump presidency as any other, even as
they acknowledge that we are in unknown territory. Normal means focusing on the transition of
power, the usual issues of staffing the White House and Cabinet, what will
happen in the first 100 days, first looks and meetings, the relationship
between the new president and Congress, the likely policy shifts. There’s plenty of normal to go around.
it’s hard to shake the feeling that there are certain, possibly unique,
abnormal elements to the Trump presidency now hovering like a dark cloud over
Washington. They have to do with who
Trump is, his personality, how he got to the White House. For me, these yield some very tentative
obvious (but not discussed in the election cycle!) abnormal feature is Trump’s
enormous potential conflicts of interest.
This issue is being raised only now, but these conflicts are difficult
to assess in historical terms because they have no parallel. In addition, gauging them properly depends on
knowledge no one has except the Trumps.
If you wanted the third world, the prospect of appointing a special
prosecutor to investigate Hillary Clinton (which I don’t expect) could pale
beside the scandals that could be in the offing if Trump does not somehow disentangle
himself from his private enterprises.
intuitions about Trump’s personality (roughly – it’s similar to Nixon’s!) suggests
two possible nightmare scenarios. First,
the Trump presidency could lead to a deep poisoning of the public sphere. This might occur through a more systematic
construction than we’ve seen previously of an alternate political reality to
reinforce and perpetuate his public support.
Perhaps the White House would link itself ever more closely to compliant
media outlets, producing a public/private combine, an “official” Trump/White
House media group. This group would
overhang longstanding news organizations, crowding them out, given its de facto
special access to the White House and administration. This group would then freeze out the standard
media, directing a constant stream of criticism against their version of
reality, while also generating a flow of success stories. In other words, we could see the creation of
a much more effective White House propaganda machine.
there are always independent voices and leaks in Washington, aren’t there? Which brings me to my final intuition, the dark
possibility of what I will call a disruptive presidency. As Trump encounters unwelcome opposition, such
as dissenting voices in Congress and the bureaucracy, the White House might retaliate
by targeting its enemies – but indirectly, perhaps through political cyber war. It could run a back channel to groups of domestic
digital trolls, perhaps also developing close links to Russian hackers to
conceal its involvement to expose embarrassing secrets about opponents, reading
their email, and generally mess with their lives.
me give you one further scenario along these lines. Suppose Trump and his supporters get mad at
universities for their political correctness and apparent unrelenting opposition to his presidency. What could happen in terms of the
cyber war I’ve suggested? Well, were the emails of the Clinton campaign
secure? I think that one answers itself. Everyone has to think differently about the security of information entrusted to institutions after this campaign.
obviously could be idle speculations.
But I think we need to keep our eyes open for the black swan.