Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler 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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.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
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Of course he did. After all, it's a day of the week ending in "ay."
As horrifying as this is, it isn't news. Nor does it tell us a single thing that everyone didn't already know about Trump, the audience to whom he addressed his bile, and the 40+ percent of the electorate who will vote for him again no matter what he does. (Are you surprised in the least that the reaction on FoxNews was gleeful?)
So it's not an especially important or revealing incident, in and of itself.
What is important--although also, sad to say, hardly groundbreaking--is that not a single one of the 250 Republican members of Congress, nor anyone who has served in Trump's Administration, will publicly acknowledge that this behavior demonstrates Trump's patent unfitness to hold the highest office in the land (or any office, for that matter). Indeed, very few of the 250 (any?) will so much as criticize the tweets, or call them what they are.
Why should this day be any different? They were silent when his response to a plausible allegation of rape was "She's not my type." They were silent when he cozied up to and coddled autocrats such as Orban, Putin, Erdogan, Kim Jong Un and bin Salman. They were silent when he refused to allow anyone in his administration to be privy to his discussions with the Russian President. They were silent when he--repeatedly--spewed outrageous calumnies against countless dedicated, talented and patriotic officials in the Intelligence Community, DOJ and the FBI. They were (mostly) silent when he mocked John McCain for having been captured in Vietnam; when he referred to "blood coming out of her wherever" when speaking of Megyn Kelly; when he sneered at Khizr and Ghazala Khan; when he claimed that thousands ofNew Jersey Muslims cheered the 9/11 attacks and then openly mocked Serge Kovaleski's disability when the reporter called out his lies. They were silent when the Mueller Report described a series of self-interested violations of his constitutional duties and well-established norms in an effort to undermine the most important counterintelligence investigation of a generation. They were silent when he gave an Independence Day speech in which he described the Continental Army as "seiz[ing] victory from Cornwallis of Yorktown," "ramm[ing] the ramparts," taking over the airports, and then watching the star-spangled banner "wave defiant” at dawn.
The list, of course, goes on . . . and on, and on, and on. "Grab 'em by the pussy." "There are very fine people on both sides." "Shithole countries." Ad nauseam. When one's project is (apparently) to lower the bar each and every day, there's no shortage of evidence of this vile man's unfitness for office and degradation of public discourse. Every reader of this blog could easily identify another dozen or more examples.
There was a day (or so I'd like to think) in which there would have been a consensus outcry, among virtually all public officials and figures, and virtually all commentators, writers and even, yes, academics, no matter their partisan affiliations, that each and every one of these things was beyond the pale--that any single one of them obviously rendered Trump unfit for office. Today, however, there's virtual silence from Republicans in power, and the intellectual and political classes that support them, as the deviancy is defined downward repeatedly. (Indeed, even former President Bush and serious individuals who've worked for Trump and seen the deviancy up close--think Mattis/McMaster, et al.--hold their tongues.) It's not Trump's behavior itself that's "normalized" the unthinkable--it's the utter absence of any concerted, bipartisan outrage and alarm in response.
To be sure, there are a handful of brave exceptions, most of whom are employed by or write under the aegis of the Washington Post, Lawfare or "Checks & Balances," such as Max Boot, George Conway, Jennifer Rubin, Peter Keisler, Jack Goldsmith, Anne Applebaum, Don Ayer (if you haven't already read it, check out this recent, extraordinary piece by Ayer, a man of great integrity who fears for what his nation and party have become), Charles Fried, Michael Gerson, and a few others. They deserve our deep respect. [UPDATE: Here's the "Checks & Balances" statement "on President Trump’s Racist Tweets." Just about pitch-perfect, as ever (although I would have liked them to say out loud what's implicit--namely, that the conduct demonstrates unfitness for office).]
Meanwhile, many officials and lawyers in the Executive branch--including a significant number who are likely horrified by Trump's racialist words and agenda--continue to work assiduously to "cure" the President's policies of discriminatory taint by dressing them up in facially nondiscriminatory dress. And several Justices of the Supreme Court--sometimes even a majority--will, in at least some important cases (e.g., Trump v. Hawaii; Thomas's dissent in the census case), ignore what everyone knows to be the truth: They will, in the words of Chief Justice Roberts in the census case, "exhibit a naiveté from which ordinary citizens are free,” and defer to the pretextual bases that the professional lawyers have conjured to defend the policies in question, no matter how ugly their obvious genesis or what function they play with Trump's intended audience. [UPDATE: And then, once the Court has deferred to the President, those same executive branch lawyers and officers reflexively assume that's a green light to implement what they know to be unlawfully motivated policies, when in truth it should be anything but--their oath should compel them, in that case, to smoke out the President's manifestly illegitimate motives (cf. Sally Yates). As Professors Aleinikoff and Pillard wrote in 1998, “[i]f the political branches parrot the courts’ lenient scrutiny, everyone has deferred to everyone else, and nobody has done the full-fledged constitutional analysis.” The Court’s deference to the President “does not give the political branches a blank check to do as they please, but leaves them with a special responsibility to comply with constitutional norms in view of a diminished judicial backstop.” I discussed this question in greater detail here in the wake of the Court's decision in the Travel Ban case.]
To reiterate: By now none of this is newsworthy. It's our new normal.
So why do I bother writing about it? Mostly to lament something else we've all known for quite a while, even if we're understandably reticent to acknowledge it and say it aloud because it's so deeply disconcerting--namely, that our revered institutions are not, and will not be, bulwarks against what was once unthinkable. And therefore the answer to "Can It Happen Here?" is now also manifest, unequivocal . . . and terrifying: Of course it could--probably with barely a whimper, and with the acquiescence (or worse) of the entirety of one of our major political parties and a significant minority of Americans. If virtually no one in the GOP so much as objects to Trump's litany of outrages, is there any reason to think a majority of that Party would suddenly put principle and the Nation's well-being ahead of partisan advantage if the authoritarian winds sweeping over Europe and other places in the world arrive at our shores?