THE BATTLE AT HALFTIME: THE RULE OF LAW vs THE RULE OF TRUMP

I once made the case in this space that Donald Trump’s disregard for truth and the rule of law was unlikely to push the country into an authoritarian abyss. My prophecy then was that career civil servants, steeped in democratic traditions, values and rules would serve as a strong buffer against the aspirational ravages of Trumpism. Now I am not so sure.

As this maniacal presidential term approaches halftime, the carnage from Trump’s brutal assault on our democracy seems to be steadily growing, almost exponentially. As a quick thought experiment, think back to any presidency in the past 30 years, Republican or Democrat. Could you have imagined then a president who:

CALLED for the prosecution of his political opponents.

OBSTRUCTED an investigation into foreign interference with our elections.

DEFENDED a Saudi leader who the CIA says ordered the murder of a Washington journalist.

THREATENED judges who ruled against him.

And now comes this unseemly B-movie plot in which Trump’s former campaign manager and convicted felon feigns a cooperative stance with the special prosecutor in order to channel investigative intelligence to the president in exchange for a pardon.

I’m not saying it’s time to start whistling that old Barry McGuire ditty about the “Eve of Destruction”. Not yet anyway. Still, this president has clearly intensified his attack on our democracy and the rule of law. He has also become more adept at finding lieutenants who will aid and abet that mission.

The New York Times reported that Trump ordered the prosecution of Hillary Clinton and James Comey, despite the absence of any evidentiary predicate. According to that reporting, then White House counsel Don McGahn told him that a president can’t order criminal prosecution of his enemies and, if he recommended doing so, it could get him impeached. So Trump backed off, just as he did a year ago when he was hell bent on firing special prosecutor Robert Mueller and McGahn threated to quit.

Eventually, Trump tired of being reined in by his legal advisor and McGahn resigned. His replacement, Pat Cipollone is said by former U.S. attorney Harry Litman to have more “moral malleability” than his successor, just what this president is looking for. That’s how Matt Whitaker, an outré lawyer with an underwhelming legal career, became acting attorney general. Not only has the new AG been openly critical of Mueller’s investigation, he has also made music for Trump’s ears by declaring the judiciary to be the “inferior branch” of government.

And we thought Jeff Sessions was in the running for Worst Attorney General Ever. The divide here is not about conservative versus liberal. It’s about respecting the rule of law versus the opposite, namely letting Trump be Trump. Both Sessions and McGahn are right-of-center purists. They are also imbued with the culture, traditions and rules of our democracy, putting them both on an unavoidable collision course with this White House. Trump saw Sessions and McGahn as his guys and expected them to do his bidding, to protect him at all costs. They saw themselves as “officers of the court”, with a sworn fealty to the legal process.

Remarkably, our system of government has held up over the years not because of the brilliance of our laws or the unique architecture of our constitution. Instead, our success has come from a source far more nebulous, one rarely mentioned in civics textbooks, namely our deeply held norms and customs that place the rule of law above the command of any one ruler. As Harry Litman, the former U.S. attorney, noted in the New York Times, Russia has “legal protections no less extensive and high-minded than ours”, but they don’t stop Vladimir Putin from locking up his political opponents.

In other words, our system works because we believe in the rule of law and accept it as our way of life. We went weeks without knowing the outcome of the 2000 presidential election, as armies of lawyers for both sides litigated their way from Florida state courts to the U.S. Supreme court, where, on a 5-4 vote, the justices, in effect, handed the presidency to George W. Bush. His opponent, Al Gore, quickly conceded. The law itself was not responsible for that peaceful transition of power, rather it was a national consensus and commitment to follow the rule of law.

That consensus and commitment to our democratic traditions has never been so volatile. Pew Research Center studies show that 61 percent of those polled say they distrust the basic framework of government and want to see it fundamentally restructured. That ripens the conditions for demagogic rule. Therein lies the inherent power of Donald J. Trump. It makes it possible for him to repeatedly lie without consequences. It lets him dismiss fact-based research of government agencies. It lets him verbally attack judges who rule against him. And, with the “moral malleability” of newly appointed legal advisors, it may well let him use the Justice Department to lay waste to his political adversaries.

Question: faced with a 2000 Gore-like situation, what would Trump do? Right. And that is just how fragile our system is right now.