Is President Trump Conventionally Disruptive, or Unconventionally Destructive?
Kenneth R. Mayer
Department of Political Science
University of Wisconsin- Madison
January 2017
Prepared for The US Elections of 2016: Domestic and International Aspects Conference,
Lauder School of Government, Diplomacy, and Strategy, IDC Herzliya, Israel.
January 8-10, 2017
The American Republic stands threatened by the first overtly antidemocratic leader of a large party in its modern history—an authoritarian
with no grasp of history, no impulse control, and no apparent barriers on his
will to power.
-
Adam Gopnik, New Yorker1
Donald Trump’s presidency is premised on being unprecedented, on
smashing conventions. Trump seems eager to break gridlock, defy history,
and embrace spontaneity and originality. Many Americans voted for him for
that reason.
-
William J. Antholis, Miller Center, University of Virginia2
[A]s we know, there are known knowns; there are things we know we
know. We also know that there are known unknowns, that is to say we
know there are some things we do not know. But there are also unknown
unknowns – the ones we don’t know we don’t know.
-
Secretary of Defense Donald Rumsfeld3
The biggest surprise to come out of the 2016 election is the sheer improbability of
the result. Every forecasting model, and nearly every commentator, public opinion poll,
even the two candidates predicted a Clinton victory, and until a week or so before the
election the question was not whether Clinton would win so much as whether it would be
an Electoral College landslide. The day before the election , the New York Times’ Upshot
Adam Gopnik, “The Dangerous Acceptance of Donald Trump,” The New Yorker, May 20,
2016.
2 William J. Antholis, “What History Can Teach an Unprecedented President-Elect,”
December 21, 2016. http://firstyear2017.org/blog/what-history-can-teach-anunprecedented-president-elect.
3 Rumsfeld was appearing at a February 12, 2002 Pentagon press briefing, in response to
question from NBC correspondent Jim Miklaszewski about whether there was any evidence
that Iraq possessed WMDs. As Errol Morris pointed out, it was a remarkably unresponsive
answer. Errol Morris, “The Certainty of Donald Rumsfeld (Part I).” New York Times, March
25, 2014. http://opinionator.blogs.nytimes.com/2014/03/25/the-certainty-of-donaldrumsfeld-part-1/.
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page showed that all nine of the forecasting models it tracked had Clinton winning.4 The
only national poll that had Trump clearly in the lead was run by the Los Angeles Times and
USC, but even that poll incorrectly predicted that Trump would win the national popular
vote.5
As the election night returns came in, first Florida, then North Carolina, then
Pennsylvania showed surprising trends; by about 11:00 Eastern time, Michigan and
Wisconsin had flipped from 2012, making it clear that Donald J. Trump would win the
Electoral College vote.6
Evidence suggests that neither candidate saw this coming7 (Trump’s harshest critics
insist that he never even intended to win, and conceived of his campaign as a marketing
ploy). Headlines captured the surprise. “Donald Trump is Elected President in Stunning
Repudiation of the Establishment;”8 “Donald Trump Wins Presidency in Stunning Upset
over Clinton,”9 “Donald Trump Elected 45th President of U.S. in Epic Upset of Hillary
Clinton.”10
The election upended the nearly unanimous view that the Republican Party would
have to go through another autopsy to address its third straight presidential defeat, only
this time in an effort to stave off the total collapse of the party. Jennifer Rubin, a
conservative Washington Post columnist, concluded in September 2016 that Trump had
killed the party, which in any event “deserved to go out of business” because of the
New York Times model 85%; 538.com 71%; Huffington Post 98%; Predictwise (a measure
of betting markets), 89%; Princeton Election Consortium, 99%; Daily Kos, 92%; Rothenberg
Political Report and Sabato Crystal Ball, “Lean Democratic.”
5 http://cesrusc.org/election/.
6 The Michigan results were close enough that the totals were not certified until November
28, but its 16 Electoral College votes were not crucial for Trump, who was already at 290
votes without them.
7 Michael Kruse, “He Was as Surprised As Anyone,” Politico, November 11, 2016.
8 Matt Flegenheimer and Michael Barbaro, New York Times, November 9, 2016, A1.
9 Karen Tumulty, Philip Rucker, and Anne Gearan, Washington Post, November 9, 1.
10 Stephen Dinan, Washington Times, November 9, 2016.
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nominee’s rhetoric.11 In July 2016 the conservative web site thefederalist.com analyzed the
history of the party and declared that a fitting epitaph would be “Here lies the Republican
Party. Born 1854. . . Committed assisted suicide in 2016.”12
During the campaign it was common to see essays and articles predicting that the
GOP was going the way of the Whigs, the 19th century political party that collapsed because
internal rifts and sectional divisions over issues such as slavery, internal improvement, and
tariffs led to the exodus of both party leaders and voters.13 That an outsider (who was only
recently and nominally a Republican) was able to wrest control of the party from
“establishment” Republicans, many of whom refused to endorse him or explicitly
repudiated him, was taken as evidence that the party would not survive. A Google search of
“Whig Trump Republican Party death” results in over 200,000 hits.14
Trump’s unexpected win changes all of that. Instead of the Republicans fretting
over the outcome and wondering what went wrong, it is the Democrats who are confronting
an unexpected loss and the collapse of their assumptions about their supporters, the role of
demographics, and the “blue wall” that supposedly protected against an electoral college
loss. For the GOP, 2012 looks more like 1964 or 1948 than 1856, foreshadowing a recovery
rather than the beginning of a death spiral.
What kind of president will Donald Trump be? Any political scientist who advances
a confident prediction at this point should be accused of social science malpractice. My goal
here is not to make such a forecast, but instead to identify a few alternative scenarios
Jennifer Rubin, “The GOP Died This Weekend,” Washington Post, September 19, 2016.
https://www.washingtonpost.com/blogs/right-turn/wp/2016/09/19/the-gop-died-thisweekend/?utm_term=.cb5adbfeea63.
12 “The History of the Decline and Fall of the Republican Party, federalist.com, June 8, 2016
13 Michael F. Holt, The Rise and Fall of the American Whig Party: Jacksonian Politics and the
Onset of the Civil War. New York: Oxford University Press, 1999.
14 Top examples are Gil Troy, “How and Outsider Killed a Party,” Politico, June 2, 2016.
Michael Holt, “Are The Republicans Going the Way of the Whigs?” Sabato’s Crystal Ball, May
20, 2016. Molly Ball, ‘The Day the Republican Party Died,” The Atlantic, May 4, 2016. Matt
Taibbi, “R.I.P., GOP: How Trump is Killing the Republican Party,” Rolling Stone, May 18, 2016.
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derived from how we analyze unconventional presidents and how their elevation to office
shapes both the winning and losing political parties.
I. Trump as a Conventionally Unconventional Candidate and President
The case for Trump as conventionally unconventional requires stepping back from
the surprise (or shock, depending on one’s view of the man) of his victory, and identifying
similarities between his victory and what he has shown so far about his governing style, and
earlier cases. No historical analogues will align perfectly, though they may (to cite a likely
apocryphal epigram from Mark Twain) rhyme.
One narrative is that the Republican victory in the 2012 presidential election should
not have been surprising, since it has proven difficult for the same party to win a third
consecutive term (George H.W. Bush was the most recent example in 1988; post-war
failures occurred in 1952, 1960, 1968, 1976, 2000, 2008, and now 2016). If this impulse for
change meant that whomever the Republican’s nominated had an advantage, the story is
more about the nomination process instead of the general election (indeed, Donald Trump
was widely believed to the weakest of the top tier candidates and the one that Clinton had
the best chance to beat).15 An emerging consensus view is that Clinton lost because rural
white voters abandoned the Democratic party in crucial states – Michigan, Pennsylvania,
Wisconsin, all of which had voted for Obama in 2008 and 2012. Even in traditionally
Democratic Minnesota, which had not voted for a Republican presidential candidate since
1972, Clinton’s victory margin over Trump (1.52%) was the smallest since the 1984
presidential election, in which Mondale won by 0.16%.
Issacharoff argues that in 2016 both the Democratic and Republican nomination
processes were the victims of “hostile takeovers” by candidates lacking even nominal
affiliation with the parties. Samuel Issacharoff, “Outsourcing Politics: The Hostile Takeovers
of Our Hollowed Out Political Parties,” NUY School of Law Public Law & Legal Theory
Research Paper Series, Working Paper no. 16-15, December 2016.
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Trump was a decidedly unorthodox presidential candidate, and will, if this pattern
holds, be a decidedly unorthodox president. He is the first president in American history
with no prior experience in government or military service. He comes to office with few
sustained links to existing governing actors, and secured the nomination over the nearly
unanimous opposition of traditional Republican elites (what we can call, loosely, “the
establishment”). Mitt Romney, the 2012 GOP presidential nominee, called Trump “a phony,
a fraud” who is “playing the American public for suckers” and “has neither the temperament
nor the judgment to be president.” Senators John McCain (R-AZ) and Kelly Ayotte (R-NH)
disavowed him after the infamous Access Hollywood tape on which Trump was recorded
describing vulgar and assaultive behavior toward women.
Many elements of Trump’s campaign were unconventional, departing from the
typical campaign structure and strategy: from his dismissal of the importance of data, the
lack of a ground game or even a large campaign organization, a casual approach to
preparing for presidential debates, his reliance on large rallies, even his relative lack of
interest in either fundraising or television advertising. Through the end of September 2016,
FEC reports showed that the Trump campaign spent more on hats ($3.2 million) than on
polling ($1.8 million). 16
Victory, of course, is a salve that heals many partisan wounds, and 2016 is no
different. Many GOP elites who had made their opposition explicit reversed course and
declared that they would work with the President-Elect (Romney, after being floated as a
possible Secretary of State, told reporters that Trump “continues with a message of
inclusion” and that he was “impressed with what I have seen in the transition effort”).17
16Phillip
Bump, “Donald Trump’s Campaign Has Spent More on Hats than on Polling,”
Washington Post, October 25, 2016. Trump was dismissive of the role of data in
campaigning, did not prepare for presidential debates, did not
17 Alexandra Jaffe, “Mitt Romney Lavishes Praise on President-elect Trump, Whom He Once
Called ‘Fraud’,” nbcews.com, November 30, 2016.
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The unexpected nature of Trump’s victory led to widespread claims that his election
constituted a major shift in American political history, akin to the election of Reagan. But
the evidence for such a view is, at best, mixed. Trump won with an electoral college majority
at the low end (304 votes, or 57%, ranking 46th out of 58 presidential elections), and a
popular vote loss that is the largest ever in absolute terms for an electoral college winner,
nearly 3 million, and in percentage terms (-2.1%) ahead of only Rutherford B. Hayes in
1876 (-3.0%) and John Quincy Adams in 1824 (-10.4%). He won his narrow majority by
eking out wins in 3 pivotal states (Michigan, Pennsylvania, and Wisconsin) by a total of
about 100,000 votes. And if the voters were driven by an appetite for change, it did not
affect congressional races where 97% of House and 90% of Senate incumbents were
reelected.
If Donald Trump’s win constitutes a rejection of traditional political relationships, is
it sensible to envision that the polarity of American politics has reversed by such a narrow
margin?
Historically, disruptive elections have tended to show far more clarity (Jackson in
1828, Roosevelt in 1932, Reagan in 1980, even Lincoln in 1860). But Trump’s win extended
down ticket to both Congress and the state level. A potential majority in the U.S. Senate
turned into a net gain of only 2 seats, leaving the Democrats with a 46 seat minority. 18 In
the House, the Democrats picked up six seats, a net gain though well short of earlier
predictions that the party might win a dozen or more. At the state level, the GOP gained
control of two more statehouses, with unified control in 25 states (the Democrats control
just 6). Republicans now have unified control of 32 state legislatures (the Democrats only
http://www.nbcnews.com/politics/white-house/mitt-romney-lavishes-praise-presidentelect-trump-whom-he-once-n689946.
18 There are two Independent Senators, Angus King (ME) and Bernie Sanders (VT), both of
whom caucus with Senate Democrats.
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13), and have 33 governorships (compared to 16 for the Democrats). In all, Republican
state-level dominance has reached levels not seen since the 19th Century.
The election did result in unified Republican control, but it was “’unified control’ of
a very peculiar sort” with stasis in the House, narrow control of the Senate, and a president
who is “a thoroughly unorthodox Republican, standing to the right of his party on some
matters, closer to the Democrats on others, but clearly not stereotypical of the Republican
Party to be found in either the House or the Senate.”19 While some of Trump’s promises
were consistent with the GOP canon – particularly tax cuts, strict immigration enforcement,
deregulation, and an energy policy more reliant on fossil fuels – others were far off the
regular party position : pledging a massive infrastructure program, and promising not to
touch Medicare and Social Security. On trade, he was closer to Bernie Sanders than to
House Speaker Paul Ryan, and the fact that the issue captured significant parts of both
parties’ rank and file, suggests that was a cross cutting issue in the mode of Sundquist’s
realignment model, in which a new cleavage cuts orthogonally to existing party loyalties.20
We should not confuse an unexpected result with a transforming result.
If there were another word besides “unconventional” to describe Trump, it would be
disruptive: Disruptive toward existing political arrangements, quite happy to disrupt the
norms that have long governed campaigning and governing, uninterested in doing things as
they have been done. Other terms for this are “order shattering” and “repudiation,” which
characterize presidents “who disavow commitments of ideology and integral to the
Byron E. Shafter and Regina L. Wagner
James L. Sundquist, The Dynamics of the Party System rev. ed. (Washington DC: Brookings
Institution, 1983), chapter 2. Jennifer Steinhauer, “Both Parties Used to Back Free Trade.
Now They Bash It.” New York Times, July 29, 2016.
http://www.nytimes.com/2016/07/30/us/politics/in-time-of-discord-bashing-tradepacts-appeals-to-both-parties.html.
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operations of the received order of things, and in directing their own powers against them,
they redefine the terms and conditions of legitimate national government.”21
Trump surely sounds and acts like a president in the repudiation/order shattering
phase of Skowronek’s political time framework. He may be an unusual President, but as a
presidency his represents a dynamic that has happened before, even recurred: Trump will
not be the first president intent on undoing previous processes, reorienting the voters and
groups to which government pays attention, and pushing for significant (even radical)
changes in government policy. He will not even be the first president widely considered to
be manifestly unqualified, or who won over the objections of his own party elite. Even
Trump’s heavy reliance on Twitter as a way of communicating with followers (and driving
press coverage) may be the continuation of the longstanding practice of presidents looking
for ways to bypass the press and communicate directly with the public. Although nobody
would confuse a 140-character tweet with FDR’s Fireside Chats, they both have similar
roots.
In this light, Skowronek’s description of Andrew Jackson sounds very familiar:
[T]here is no choosing between the old Whig myth of “Jackson, the
demagogue” – the tyrant who disregarded all limits on executive power, and
ran headlong into ever more extreme and irrational policies – and the old
Democratic myth of “Jackson, the liberator” – the populist insurgent who
reached out beyond the elite and ushered the “common man” into a more
participatory politics. The battles Jackson fought in the name of the
“common man” were driven, in good measure, by his own insatiable thirst
for personal vindication.22
Schlesinger’s definitive work on the era noted that “Jackson did indeed bear the reputation
of being intemperate, arbitrary, and ambitious for power. As a general he had tended to do
necessary things with great expedition and to inquire afterwards into their legality.”23
Steven Skowronek, Presidential Leadership in Political Time: Reprise and Reappraisal
(Lawrence, KS: University Press of Kansas, 2008), 19
22 Steven Skowronek, The Politics Presidents Make: Leadership from John Adams to George
Bush (New Haven: Yale University Press, 1993), 132-33.
23 Arthure M. Schlesinger, Jr., The Age of Jackson. Boston: Little, Brown and Co., 1950, 37.
21
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At a personal level, contemporary views of Jackson mirrored those of Trump. In
Henry Clay’s estimation, Jackson was “ignorant, passionate, hypocritical, corrupt, and easily
swayed by the base men who surround him”; in John Quincy Adams, “a barbarian who could
not write a sentence of grammar and hardly could spell his own name.”24 Thomas Jefferson
reputedly considered him to be “one of the most unfit men I know of for such a place. . . he is
a dangerous man.” 25 Each side’s supporters made slanderous charges against the other, and
spouses were fair game: Jackson’s wife was accused of having an affair with him while still
married to her first husband; “in retaliation, members of the Jackson campaign charged that
Adams’ wife had taken up prostitution while living in Moscow during her husband’s tenure
as ambassador to Russia.”26
There is nothing exceptional about a disruptive president. Many classic works on
the presidency argue that disruption is an inherent part of the office: all presidents are
driven to gain control of government, in order to place their own mark on it. Neustadt
writes that the general problem presidents face is not how to win in any particular
interaction, but how to “boost [their] chances for mastery in any instance, looking forward
toward tomorrow from today.” 27 Moe’s now classic work on institutional theories of the
office, argues that “presidents pursue interests that are often incompatible with, and indeed
threatening to, the interests of most of the other players,” and that what presidents want is
autonomy – the freedom to “take autonomous action – indeed, to be open and bold about
it. . . Autonomy is an in integral part of their institutional incentive structure, and part of
Leonard D. White, The Jacksonians: A Study in Administrative History, 1829-1861 (New
York: MacMillian, 1954), 2.
25 Schlesinger, The Age of Jackson, 37.
26 Samuel Kernell, “Life Before Polls: Ohio Politicians Predict the 1828 Presidential Vote,”
PS: Political Science and Politics 33:569-574, 537 (No. 3, September 2000).
27 Richard E. Neustadt, Presidential Power and the Modern Presidents. New York: Free Press,
1990, 4.
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what it means to be a good president.”28 In Skowronek’s formulation, “the presidency is a
governing institution inherently hostile to inherited governing arrangements.”29
If Trump is conventionally disrupting, as the optimistic assessment of William
Antholis suggests, the separation of powers (and, in the event it comes into play, the
independence of the judiciary) will smooth off the roughest edges and more extreme
elements of his presidency. So far, at least, there are checks on even unified government,
such as the Senate filibuster, and the ability of federal agencies to put up at least some
resistance to executive demands.30 It is possible that the imperatives of governing, vastly
different than those of campaigning, may themselves temper Trump’s behavior (former
Chiefs of Staff predict that Trump’s loose organization of the White House staff is unlikely to
succeed)31, or that simple self-preservation will prompt congressional Republicans to
hesitate before cutting Social Security benefits or changing Medicare into a voucher
program. Even the priority of repealing the Affordable Care Act runs into the reality of
taking away insurance from millions of beneficiaries, which according to lore is much
harder than not providing the benefit in the first place. 32 Democrats will dislike most of the
Terry Moe, “Presidents, Institutions and Theory,” in George C. Edwards III, John H. Kessel,
and Bert A. Rockman, eds., Researching the Presidency: Vital Questions: New Approaches.
Pittsburgh: University of Pittsburgh Press, 1993, 363 and 364-5.
29 Skowronek, The Politics Presidents Make, 20.
30 Although the precise circumstances are contested, in early December a staffer in the
Trump transition organization sent a questionnaire to the Department of Energy, asking
among other things for the names of DOE employees or contractors who had worked on
climate change issues or had attended relevant conferences or interagency meetings.
Critics immediately objected to the questions as an effort to exorcise climate science from
the DOE portfolio; DOE officials refused to provide the information; and the transition
backed down. Chris Mooney and Juliet Eilperin, “Trump Transition Says Request for Names
of Climate Scientists Was ‘Not Authorized’,” Washington Post, December 14, 2016.
31 Karen Tumulty, “Prienus Faces Daunting Task Bringing Order to White House That Will
Feed Off Chaos,” Washington Post, January 1, 2017.
32 Katherine G. Carman, Christine Eibner, and Susan M. Paddock, “Trends in Health
Insurance Enrollment, 2013-15,” Health Affairs 34:1044-1048. An Urban Institute study
forecast that nearly 30 million people would lose insurance under a partial repeal, through
a combination of eliminating subsidies, Medicare contraction, and instability in the
individual health insurance market. Linda J. Blumberg, Matthew Buettgens, and John
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policies that emerge from his administration, but policy differences do not on their own
pose a danger to the stability of governing institutions.
II. Trump as Unconventionally Destructive
The less sanguine view of Trump is that he is not merely a conventional disrupter
but is a reckless demagogue, intent not just on revisiting long settled policy disputes but on
shredding the norms necessary to the functioning of a constitutional system.
The case for Trump as an unconventionally destructive president begins with the
view, common among his critics, that he is singularly unqualified to be president by virtue
of his lack of experience, willful ignorance, impulsiveness, transparent and unrepentant lies,
and a political appeal based on a toxic populist nationalist populism.33 At the more extreme
edges of this position, Trump is compared to authoritarian and even fascist political
figures.34 Here, not even the comparison to Andrew Jackson brings much comfort, since
Jackson’s reputation as uncontrollable and dangerous was pushed by his political
Holahan, Implications of Partial Repeal of the ACA Through Reconciliation. Health Policy
Center, Urban Institute. December 2016.
33 Stephen Hess, who served under both Eisenhower and Nixon, observed that Trump “is
the most profoundly ignorant man I’ve ever seen at this level in terms of understanding the
American presidency, and, even more troubling, he makes no effort to learn anything;”
former Representative Vin Weber (R-MN), that “our politics, because of him, is descending
to the level of a third-world country. There’s just nothing beneath him. And I don’t know
why we think he would change if he became president.” Jonathan Martin, “Donald Trump’s
Anything-Goes Campaign Sets an Alarming Political Precedent,” New York Times, September
17, 2016.
34 Jeet Heer, “Is Donald Trump a Fascist?” New Republic, September 30, 2016. Steven
Levitsky and Daniel Ziblatt, “Is Donald Trump a Threat to Democracy?” New York Times,
December 16, 2016. A. Barton Hinkle, “Donald Trump’s Authoritarian Fantasies,”
reason.com, February 29, 2016, http://reason.com/archives/2016/02/29/donald-trumpsauthoritarian-fantasies.
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opponents (a legend that, according to Schlesinger, they “almost managed to read into the
records of history”). 35
The boundary between disruptive and destructive may not always be clear – and
identifying it is complicated by the fact that disrupting political relationships by definition
involves destruction and reconstruction. But a key theme of his candidacy – indeed, the only
consistent theme – was a continued and willful flouting of campaign norms, and, at least so
far, governing norms.
Proving that it is possible to win a presidential election while ignoring the
conventional wisdom about TV advertising, or is more of a strategic innovation than a
constitution-busting norm violation. Yet other aspects of Trump’s campaign are more
troubling: his threat to jail Clinton if he wins; his repeated questioning of the legitimacy of
the election itself, which continued even after he won; his musing that if Clinton won,
“Second Amendment people” might be in a position to do something about her judicial picks,
If we view these norms as an equilibrium – in which deviating from them results in
actors being worse off than if they had adhered to them – the operating assumption is that
there will be a consequence for violating them. This is ultimately why actors adhere to
them. Norms are a way of maintaining constitutional principles, and typically involve
foregoing immediate political or partisan advantage in the interest of precedent, stability,
and reciprocity:
Democratic institutions must be reinforced by strong informal norms. Like a
pickup basketball game without a referee, democracies work best when
unwritten rules of the game, known and respected by all players, ensure a
minimum of civility and cooperation. Norms serve as the soft guardrails of
democracy, preventing political competition from spiraling into a chaotic,
no-holds-barred conflict.36
Schlesinger, The Age of Jackson, 37 (emphasis added). Jackson had, in addition, far more
experience in public service, as a General, member of the House, U.S. Senator, and Justice on
the Tennessee Supreme Court.
36 Levitsky and Ziblatt, “Is Donald Trump a Threat to Democracy” New York Times,
December 16, 2016.
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Post-election Trump shows no signs of moderating. Among the traditional
governing practices that Trump is deviating from are: having the First Family move into the
White House, asserting that the President “can’t have a conflict of interest” and his refusal to
divest his business holdings or place them in a blind trust,37 publicly admitting that much of
his campaign rhetoric was cynically strategic, openly disputing the intelligence community
finding that the Russian government worked to help Trump get elected, using family
members as advisors even if it runs up against anti-nepotism statutes, and even continuing
to use his own private security force rather than relying wholly on the Secret Service. 38
Former Speaker of the House Newt Gingrich suggested that Trump could simply
ignore any laws regarding conflicts of interest or anti-nepotism that would prevent him
from putting family members in the White House, and then issue a presidential pardon if he
(or they) were found to have broken the law.39 Ethics experts are still working through
potential issues posed by the Constitution’s Emoluments Clause,40 and it’s applicability to
Trump’s global business empire.41
Peter J. Henning, “Congress May Hold Key to Handling Trump’s Conflicts of Interest,” New
York Times, November 28, 2016.
38 See Daniel Drezner, “Donald Trump’s Three Types of Norm Violations,” Washington Post,
December 19, 2016.
https://www.washingtonpost.com/posteverything/wp/2016/12/19/donald-trumpsthree-types-of-norm-violations/?utm_term=.d88a8a03b09e.
39 Gingrich made these statements on the Diane Rehm Show (National Public Radio) on
December 19, 2016. http://thedianerehmshow.org/shows/2016-12-19/ongoingquestions-about-how-donald-trump-will-deal-with-business-conflicts-of-interest-aspresident.
40 Article I, Section 9, “[N]o Person holding any Office of Profit or Trust under them shall,
without the Consent of Congress, accept any president, Emolument, Office, or Title of any
kind whatever” from any foreign state.
41 Norman L. Eisen, Richard W. Painter, and Laurence H. Tribe, The Emoluments Clause: Its
Text, Meaning, and Application to Donald J. Trump. Brookings Institution Governance Studies,
December 16, 2016.
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The problem is not simply any of these specific steps in isolation, or even their
unprecedented nature.42 The danger is that once one norm is obliterated, there is less
protection against subsequent violations of other norms, as the main reasons for adhering
to them weakens. If political actors are uninterested in expectations, precedent, or stability,
or if they no longer face consequences, their behavior becomes untethered and can become
a threat to institutions. The possibility of severing the connection between legitimacy and
authority, the sheer instability of the president-elect’s policy agenda, and the apparent use
of unpredictability as a strategy would be truly unprecedented.
There is no constitutional provision that requires congressional majorities to grant
any procedural rights to party minorities (membership on congressional committees, for
example).43 There is no law that prohibits Congress from impeaching and removing federal
judges because their decisions are unpopular; it is rather a “precedent. . . [that] a judge’s
judicial acts may not serve as the basis for impeachment” based on the unsuccessful
partisan effort to remove Justice Samuel Chase from the Supreme Court in 1805.44 There is
no formal rule that requires the president to accept national security briefings, or even to
avoid openly disputing the public findings of the intelligence community. There is no
statute that prohibits the president from maintaining business interests, nor has there ever
been a definitive judicial interpretation of the Emoluments Clause (in large part because the
question has never arisen); most of our understanding comes from precedent. While
presidents have used the pardon power to shield presidential advisors from prosecution
I have not found any records of private presidential security forces. Prior to the informal
use of the Secret Service to protect the President beginning gin 1894, presidential security
was either nonexistent or provided by military guards, local police, or a congressionally
funded auxiliary. See Report of the President’s Commission on the Assassination of President
Kennedy. Washington DC: Government Printing Office, 1964, Appendix 7, “A Brief History of
Presidential Protection.”
43 Sarah Binder, Minority Rights: Majority Rule: Partisanship and the Development of Congress
(New York: Cambridge University Press, 1997).
44 Adam A. Perlin, “The Impeachment of Samuel Chase: Redefining Judicial Independence,”
Rutgers Law Review 62:725-789, 786, quoting William H. Rehnquist.
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and investigation,45 the practice has been rare; still, nothing formally prevents a president
from making this a routine tool. There is no requirement that presidents centralize decision
making authority and monitoring mechanisms in the White House; the structures that fulfill
these functions have been in place for a century as a solution to the institutional problems
and incentives that presidents face.46 These practices have all been long-settled norms, in
large part because political elites have recognized that abiding by them is in their interest,
and that they smooth the functioning of democratic governance. Because they are based on
forbearance, in the absence of public approbation they may prove even weaker than the
“parchment barriers” that Madison warned as insufficient protection against the
concentration of power.47
In this landscape, there are three general possibilities. The first -- and probably the
least likely – is that the president and congressional leadership change their behavior,
having recognized that it is in their self-interest to back away from the brink. A second is
that a spectacular failure stemming from bad management or poor decision making
practices,48 or a hugely unpopular policy, triggers enough public reaction to force the
president’s hand (or lead to congressional opposition born of self-preservation). A final
possibility is that violation of norms becomes routine, something that would change how we
understand democratic practice in the U.S.
In December 1992, George H. W. Bush pardon six former Reagan Administration officials
for their actions in the Iran-Contra scandal. David Johnson, “Bush Pardons in Iran Affair,
Aborting a Weinberger Trial; Prosecutor Assails ‘Cover-Up’.” New York Times, December 25,
1992.
46 In this regard the incipient structure of the White House Office is wildly inconsistent with
the standard model. Trump has created rival power centers, each with a staffer with no
White House or government experience: RNC Chair Reince Priebus at the top of one as Chief
of Staff, and former Goldman Sachs banker and chairman of Breitbart News, a far-right news
site. Trump has hinted that his White House will not have a strict organizational structure.
47 Federalist 48.
48 Richard Pious, Why Presidents Fail: White House Decision Making from Eisenhower to Bush
II. Lanham, MD: Rowman and Littlefield. 2008.
45
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Which will it be? In endorsing Trump in June 2016, Donald Rumsfeld called him a
“known unknown,” preferable to Clinton whom he deemed an unacceptable “known
known.”49 A more accurate answer, as clichéd as it might be, is that it is far too soon to tell.
Cooper Allenm “Rumsfeld Says He’ll ‘Clearly’ Vote for Trump, Calls Him ‘Known Unknown,”
USA Today June 23, 2016.
http://www.usatoday.com/story/news/politics/onpolitics/2016/06/23/donald-rumsfelddonald-trump-clinton/86280248/.
49
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