Dear Congress. Trust me. Don’t bother trying to pass a law protecting Robert Mueller. Take my word for it. No matter your party, it’s not worth it.
Look, I get it. I know the Democrats are up in arms because they think Mueller is going to put them out of their Trump misery. I know the Republicans are afraid they need to protect Trump from himself. I know what I am suggesting must sound like utter blasphemy to some of you.
But hear me out.
WE MAY COME TO REGRET THIS
To begin, a law making the position of special counsel sacrosanct has its own big potential to backfire down the road. We have seen it time and time again. Laws get passed to protect against or combat abuses by those in government. Only to have those same laws turned against us later on down the road. So, for something like this, hesitate and seriously consider how the law can be abused before you try to pass it.
ERODED NORMS MEAN FEWER CHECKS AND BALANCES
But for me the bigger issue is that this serves as a litmus test. For once in this Presidency, there is a norm that will serve to protect our Republic if violated.
I have commented before (here, for example), that under this Presidency, I have seen alarming erosion of our republic in the direction of authoritarianism. I don’t say that lightly.
I get that we have our much-ballyhooed checks and balances. But so much of what we had protecting our republic appears to have been not based in law, but rather in custom. If all our office holders behave like gentle persons, there may be abuses here and there, but in the end the republic remains.
But Trump and his administration don’t obey the norms. They don’t bow to the customs. In fact, they revel in not doing so. That’s one of the highly touted reasons for why he got elected, after all. That Trump was not conventional and would not behave like a normal politician.
But here’s the problem. Those norms were part of the checks and balances in power. It is not normal to assume that the EPA is all cock and bull and thus undermine it as serving no purpose. It is not normal to refuse to make public your tax returns when running for President. It’s not normal to not fully divest oneself of one’s business interests. It is not normal to give your close family members key jobs and then not care about their security clearances. It’s not normal to spout policy based on the latest installment of Fox and Friends or a meme you saw, rather than consulting first with the vast array of intelligence and information at your fingertips as President of the United States.
But because these are just simply customs and norms, there is nothing to be done. It’s still allowed, even if it is divisive, or destructive, or negligent.
EVEN OUR CHECKS AND BALANCES ENSHRINED IN LAW HAVE ERODED
Our government checks and balances we usually talk about are those described in the Constitution itself. Three branches, each off setting the others and therefore keeping them in check. Executive branch (President). Legislative branch (Congress). Judiciary branch (courts). Sounds great. And to some extent, the courts, at least, have served to keep the current President, as well as past Presidents, in check, despite the ever-expanding executive powers.
Here’s the problem with that system. It requires that each branch actually try to keep the others in check. But that’s not how things are developing in this country.
CONGRESS FAILS TO SERVE AS A CHECK
Ever since Citizens United, political groups need rely less and less on normal folks, or their organizations to raise campaign money. As a result, our two major political parties really don’t have to serve we, the people, anymore. Instead, they need to serve their backers, i.e., big corporate and organizational interests. The parties less and less serve their constituents and more and more dictate to the constituents what the constituents should want and believe.
From that comes another natural development. The national parties now dictate and serve more uniform platforms, from the highest levels of the federal government all the way down to the smallest local election. Local interests are lost to national party leanings.
So then along came Trump. He got the RNC nomination for President. That means the national party cannot dissent. They have to back him. Unified, from top to bottom. So even if some give lip service to how they have issues with the President or his policies, they still largely vote in Congress along the party line.
Now, some don’t seem to like the direction Trump is leading the party toward. Some think that Trump stains the party with the same tarry brush with which he stains himself. But they don’t have much choice. Either play along or quit.
Don’t believe me? Check out how many Republican Congresspersons are inexplicably retiring this year. Check out how many card-carrying Republicans quit the party during the last election.
The following has resulted. The President does his thing, and the Republican dominated Congress largely goes along. The legislative branch no longer tries to keep the President in check, because under the current model for our political parties, it should not do so.
What if it were a Democrat led Congress? Things would not be much better. This development in our political parties is one of the key reasons why our Congress is gridlocked. It’s not about constituents’ interests as much as it is about the national parties’ stated interests. One block en masse opposing another. No compromise. No quarter. Less meaningful discussion about or consideration of the laws proposed. Nothing gets done unless it is rammed through by strength of one party alone.
THE COURTS ARE BEING STACKED
So, right now, the Republican led Congress has almost no desire to act as a check against the executive branch. But the courts have acted as a check. They have ruled against some of the President’s policies, right?
Yes, they have. And supported, to some extent, others.
But more importantly, there is a real possibility this won’t last. See, Republicans have dominated Congress for close to the last 8 years. That gave them the means and the opportunity. The motive is the new model of a national party front, i.e., the party is all, regardless of what that might mean. The result is a systematic effort to stack the courts.
Republicans sat on the nomination of Merrick Garland as a Supreme Court Justice. For about a year. And they were honest about it. They openly said they did it for party reasons. They refused to do part of their job and broke the norms in an effort to stake the Supreme Court in their favor.
But that was not the only judicial nomination they sat on. You remember how Trump touted among his successes all his judicial nominations and appointments? Federal judges, ever single one of them, are appointed for life. So, that did not happen simply because there were suddenly a bunch of vacancies when Trump took office.
No, those vacancies had already been sitting for a while before Trump was elected. Trump was handed the opportunity to nominate so many judges by the Republican Congress. They sat on a backlog of judicial nominations, refusing to consider them under President Obama. They let them stack up so that, later, they could try to stack the courts with judges more likely to be favorable to the Republican party line.
So even the judiciary is being undermined in its ability to serve as a check.
JUST HOW FAR HAVE THE NORMS ERODED?
Checks and balances failing to work. Norms being ignored. What are we to do?
Well, if you are the GOP, you apparently launch a propaganda website designed to smear one person because he has a book coming out that may less than flattering to the current President. They aren’t even trying to hide that the norms have been blown out of the water. Who needs Russian bots when you can set up your own propaganda machine?
Former FBI Director James Comey’s book is about to be released. It may be released by the time I publish this blog. On the assumption that Comey will say some unkind things about the President, the RNC launched, in advance of the book’s release, a website designed to discredit Comey called Lyin’ Comey.
This is not run by Republican supporters, or the Trump campaign, or some group of concerned citizens. The RNC owns and runs the site. This is straight up smear propaganda for the Republican Party. They are no longer pretending to be above the fray. There is no pretense or subtly.
That’s how far down the rabbit hole things have gone. A U.S. political party is openly running a website designed to impugn not even a political rival, but instead a fired director of the FBI and former member of the Justice Department. Who is now simply a private citizen. Oh, yeah. And a Republican. Our republic has devolved that far.
THE SPECIAL COUNSEL IS A TEST FOR TRUMP – WILL HE PASS?
The norms that are supposed to keep things in check have been thrown out the window. Many of them. But not all. And here’s where I circle back to the special counsel.
One norm that keeps getting iterated by both Democrats and Republicans is that if Trump fires the special counsel, or takes steps to fire the Assistant Attorney General in order to get the special counsel fired, that will cross a red line as far as norms go. That will be seen as clear obstruction of justice. That’s impeachable. That will be something that will be very hard for this beleaguered Presidency to recover from.
Trump is impulsive. And personally affronted by the special counsel, his actions, and the entire investigation. The unified front of the RNC knows this. And they are afraid. So, some are willing to pass legislation designed to prevent the President from setting in motion a chain of events that would lead to firing Mueller. To protect the President from himself. Again, because the party is all.
Meanwhile, the unified Democratic front thinks that Mueller will be able to bring charges or otherwise create a case for impeachment. Now, I am not so sure that he will. I am not sure the chain of wrongdoing can be directly linked with the President. But the Democrats are prepared to bank on it. So, they don’t want Mueller to go anywhere.
But for me, here’s the deal. Let Trump do it, if he is so inclined. Leave the door open for Trump to violate this norm. Use it as a litmus test. One that benefits both Democrats and Republicans.
If Trump makes the move to fire Mueller, whether directly or indirectly, then both parties will know. Democrats can rest happy that a strong case for impeachment based on obstruction of justice exists. Republicans will know there is no saving the party from this man, and that it is better for the party to walk away from him. To cut him loose.
Further, the ground work already laid is not going anywhere. The investigation has been started, and it will continue with or without Mueller.
On the other hand, if Trump never makes that move, no harm, no foul. A lot of handwringing over nothing. At least a law that may have damaging consequences down the road will not have been passed to protect against something that did not happen anyway.
So, in my mind, leave it alone. If Trump hoists himself on his own petard, that benefits the Democrats and, even, the Republicans in the long run. If he doesn’t, then we’ll be glad we didn’t waste our time.
This is one norm that should have serious consequences to Trump should he violate it. Leave him the opportunity to decide whether he is going to do that or not. And leave him to face the consequences of that decision no matter what it may be.
Sometimes you should not break the glass. The President of the United States should already have this basic life lesson down. If he doesn’t, it’s high time he learned. So, let him.