Tuesday 20 August 2019

Trump's broken republic

Donald Trump's presidency is threatening the cornerstones of American democracy as he rides roughshod over a legislature designed to prevent authoritarianism, writes Robert Schmuhl

Under scrutiny: Donald Trump is being inundated with demands for information. His staff's first response: How dare you?
Under scrutiny: Donald Trump is being inundated with demands for information. His staff's first response: How dare you?
Nancy Pelosi shakes Trump's hand after the 2019 State of the Union address

Robert Schmuhl

Pity anyone trying to explain the day-to-day workings of the American Republic in 2019. Theory and practice collide with such regularity the original concept gets crushed in the fallout.

Washington today resembles an abstract painting - say, a late Picasso with noses and eyes jarringly misplaced - rather than an Old Master with life-like, realistic human features scrupulously arranged.

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What Winston Churchill once called "the Great Republic" and French intellectual Raymond Aron viewed as "the Imperial Republic" is closer nowadays to the Broken Republic.

The principle of checks and balances, paramount in making sure the three branches - executive, legislative and judicial - don't reach too far achieving their objectives, is undergoing a continuing, massive stress test, with nobody able to predict what the final results might be.

Donald Trump - who at a Florida rally on Tuesday will announce he's seeking a second term as president - isn't singularly responsible for the compound fracture contributing to this broken system.

Roots of the current disorder extend back half a century: the Vietnam War, Watergate, increasingly bloodthirsty partisanship, the mania for personality over policy and other blows to the US body politic all opened wounds that grew, festered and never healed.

Each time a rabbit punch struck the citizenry, public anger expanded, leading to greater distrust and hostility. Scepticism evolved into cynicism - and cynicism into anger, if not rage.

Back in 1958, when opinion researchers first inquired about public confidence in the US government, 73pc of people surveyed said they trusted "Washington always or most of the time". In March the Pew Research Center reported the number has plummeted to 17pc.

Democrats, Republicans and independents increasingly cast a jaundiced eye at Washington, likening it to 'a swamp', populated by bottom-feeding creatures worried principally about maintaining their hold on power. One 2020 Democratic presidential candidate said the other day that the election of Trump represented a desire "to burn the house down". A swamp. A burned-out house. A Broken Republic.

The lodestar guiding America's founders led them in the late 18th century to separate and spread out governmental power among many people to avoid one-person rule - a monarch, say.

By their design, the executive branch - with a president atop the flow chart - carried out federal business involving a multitude of departments, while the legislature funded those departments and kept a watchful eye on the president's administration via its oversight role. Then the courts (among other responsibilities) judged the legality (or not) of actions taken by the other two realms of government.

What happens, though, when one or another governmental entity attempts to redraw the blueprint - or to disregard it altogether?

At that point, the two words 'constitutional crisis' tend to be heard in journalistic bulletins with the frequency of weather reports, and the phrase echoes until there's a resolution.

In 1974, President Richard Nixon's misdeeds, lumped together under the epithet 'Watergate', forced his resignation even before there was a vote of impeachment. Twenty-four years later, President Bill Clinton was, indeed, impeached in the House of Representatives by the opposition party when Republicans controlled the chamber. (He was later acquitted in the Senate.)

In Nixon's case, a president went too far, his conduct both legally and morally unbecoming the country's highest elected official. It took a legislative inquiry and court decisions to make him see he had no future in the White House.

With Clinton, the House of Representatives reached beyond its boundaries in a matter more personal than governmental. Interestingly, Clinton's job approval rating soared throughout the impeachment imbroglio. People understood that Republicans were trying to cripple a Democratic president.

A principal reason for all the recent jousting between Democrats and Republicans is the near-rabid allegiance in party support that has developed in the US during the last 50 years.

In 1964, President Lyndon Johnson signed into law the landmark Civil Rights Act, outlawing segregation in public places and employment discrimination. Congressional approval was bi-partisan. In the House, Republican support was 76pc and Democratic 60pc. Over in the Senate, 82pc of Republicans backed the measure compared to 69pc of Democrats.

Contrast those figures to what happened with the passage in 2010 of the Affordable Care Act (nicknamed 'Obamacare' and intended to extend health care nationally). President Barack Obama signed the bill into law without the assent of a single Republican in either the House or the Senate.

In late 2017, history repeated itself with another large-scale piece of legislation. Republicans passed an overhaul of the federal tax system, and not one Democrat voted for the measure on Capitol Hill. President Trump proudly signed the most extensive changes to the tax code in three decades and didn't worry it was a one-sided measure.

Strict party-line voting in Congress helps the executive branch when the House, Senate and president are all operating under the banner of one party. Obama could push for health care his first two years in office, yet once Republicans assumed power in the House in 2011, dreams of bold governmental initiatives died.

Yes, Obama won re-election in 2012, but he had to resort to executive orders instead of legislation for the remainder of his presidency. Trump quickly and quite publicly struck down most of those orders.

The Obama administration skirmished with a Republican House for six years and a GOP-controlled Senate in 2015 and 2016. Any semblance of cooperation seemed superficial and forced, with many observers recalling a remark Republican Senate Majority Leader Mitch McConnell made in 2010 as a defining declaration about the contemporary state of American politics and government.

McConnell was minority leader in the Senate, and revealed to a reporter his priority: "The single most important thing we want is for President Obama to be a one-term president."

McConnell didn't get his wish, but his words remain emblematic of this time with its emphasis on blood-sport competition of political gamesmanship. But McConnell is by no means alone.

Democratic House Speaker Nancy Pelosi recently told a university audience that "we cannot accept a second term for Donald Trump if we are going to be faithful to our democracy and to the Constitution of the United States, and that is just a fact."

Once Democrats took charge of the House of Representatives in January and elected Pelosi speaker, the Washington power game dramatically changed from how it was played the first two years of the Trump presidency. Throughout 2017 and '18, Republicans called every shot in the executive and legislative branches.

Of course, the investigation of Special Counsel Robert Mueller, probing Russian involvement in the 2016 election, frustrated the Trump administration, particularly the president, for nearly two years. But it's important to remember it operated within the Department of Justice, part of the executive branch.

Now, however, House committees possess oversight and investigatory powers to examine what the president and his administration are doing, and they can also inspect certain financial records of Trump's previous life in business and entertainment.

As a real estate developer and reality television character, the New Yorker never answered to a board of directors or anyone else. He did whatever he wanted without revealing his income, debt, charitable contributions or related particulars. In his gold-plated domain atop Trump Tower, he was all-powerful while acting completely on his own.

Imagine someone at the age of 73 and accustomed to keeping business matters close to the vest now being inundated with outside demands for all manner of previously private documentation.

Thus far the president and his staff have approached such requests by following a strict pattern of response. First, they go on the attack and reply (in so many words) 'How dare you!' Then they refuse to comply, hoping that delaying will slow or curtail release of information.

The next move is to file a lawsuit, tying up all the proceedings in the snail-paced court system with its appellate stages, adding more time to the entire process. Litigation can be an endless endeavour with the entire Justice Department at one's disposal.

Stalling at every step is their preferred form of action. To show how ingrained this strategy seems to be, USA Today calculates that in Trump's business affairs, he has sued or been sued approximately 4,000 times since the 1970s.

At the moment, according to a recent Washington Post analysis, the White House is trying to block over 20 separate investigations.

Back in 1924, responding to what was called the Teapot Dome scandal during President Warren Harding's administration, a law was passed allowing Congress to access any individual's tax return. Since Trump is the first president in 50 years who has failed to release any tax information, the House Ways and Means Committee recently requested these documents.

Treasury Secretary Steven Mnuchin declined outright, saying there was no "legitimate legislative purpose" to provide the returns. Cue the lawyers.

Among other House investigations, one involves seeking testimony from former White House counsel Donald McGahn. The administration, though, refused to allow him to go to Capitol Hill to explain what he had told Mueller's investigators, defying a Congressional subpoena to appear.

Hope Hicks, who served in several key communication posts for the administration, agreed late this week to appear in private before the House Judiciary Committee. She'll be the first Trump aide, past or current, to answer questions before Congress related to the Mueller inquiry and possible obstruction of justice by the executive branch.

During the Obama years, when Republicans were in charge of one or both congressional chambers, disputes broke out with regularity.

What's different today is that the executive branch is acting as though the legislative branch has no oversight role, one of its most important constitutional functions.

Moreover, the sheer number of different investigations makes it difficult to keep track of everything under scrutiny. Many days in the US, the business of government seems secondary (or tertiary) to reports about pitched battles between the White House and Capitol Hill.

The courts - all the way up to the Supreme Court - will be working overtime to deal with the entirety of lawsuits being filed by either the executive or legislative branches.

What's occurring flies in the face of how the American system is supposed to operate. If every attempt at oversight is rejected out of hand and forwarded by lawyers for resolution by judges, the basic design of federal governance in the US is jeopardised.

"No system works - even one as brilliantly constructed as the United States constitution - without good faith," former Republican House member and law professor Tom Campbell noted recently. "When good faith falls apart, the ability for the Constitution to work is compromised."

Trump and his allies keep blaming Democrats for "presidential harassment", and nearly two dozen inquiries in a hyper-partisan climate might create that impression.

But Trump's reluctance to disclose financial information or to divest of any personal business dealings opens doors to unprecedented scrutiny. What, if anything, is he trying to hide? Are there conflicts of interest? To continue to act essentially as a private citizen when someone occupies a nation's highest public office makes most observers wonder how long he can sustain this stance.

As Trump looks ahead to his re-election campaign, he can take some consolation in the low standing of the legislature. A Gallup survey last month showed that just 20pc approve (and 77pc disapprove) of the way Congress is handling its job.

In addition, the president has attacked the news media with such virulence and frequency that trust in US journalism keeps declining. A few days ago, America's chief executive tweeted: "I know it is not at all 'Presidential' to hit back at the Corrupt Media, or people who work for the Corrupt Media, when they make false statements about me or the Trump Administration. Problem is, if you don't hit back, people believe the Fake News is true. So we'll hit back!"

The current administration is taking America into uncharted and unpredictable territory. The constitutional design is tested almost daily, and it's a fool's errand trying to predict long-term consequences of the blunt refusal of one branch of government to work with another.

On May 22, presidential petulance reached a new high (or low), when Trump stormily informed Democratic legislators he wouldn't work with them unless they stopped investigating him. An important scheduled meeting ended after three minutes with the delivery of his ultimatum.

Just last week, during an interview for Fox News taped at the American cemetery in Normandy with headstones in the background, the president referred to Pelosi as "a disgrace" and "a disaster" and five minutes later to Senate minority leader Chuck Schumer, a Democrat, as "a disgrace" and a "jerk".

Trump was particularly angry at the Speaker for telling members of her caucus: "I don't want to see him [Trump] impeached. I want to see him in prison."

A critical factor in assessing the damage of this unending combat will be whether Trump secures another term next year. The past three presidents - Clinton, George W Bush and Obama - all won re-election campaigns and served the full eight years. That institutional trend now seems strong. Will it continue? Can it, given the unprecedented circumstances?

In 1787, as the Constitutional Convention concluded, Benjamin Franklin was asked whether America would become a republic or a monarchy. Without hesitating, he answered: "A republic, if you can keep it."

Keeping the American Republic - and finding the most constructive ways of repairing the places where it's broken - will be centre stage as the 2020 presidential campaign increasingly commands attention.

Robert Schmuhl is professor emeritus of American Studies at the University of Notre Dame and an adjunct professor in the School of Law and Government at Dublin City University. His book, The Glory and the Burden: The American Presidency from FDR to Trump, will be published in September.

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