We Are Already In A Constitutional Crisis And Have Been For A While
All last night and today, I have heard plenty of pundits and politicians (although not Republicans) declare that firing Robert Mueller would create a constitutional crisis. And that is undeniably true. But the reality is that we have been enduring multiple constitutional crises for a few years already.
I remember Chuck Todd, on MTP Daily, declaring that we had a constitutional crisis on our hands the very moment he found out that Trump had fired Comey. That crisis was defused by moving the Russia investigation to the Special Counsel Robert Mueller. And now we find out that Trump had ordered the firing of Mueller back in June, most likely in response to the news that the Special Counsel had begun looking into potential obstruction of justice charges as well as Trump’s business dealings. That potential crisis was averted by White House Counsel Don McGahn’s refusal to obey the order and threatening to resign.
But our crisis runs deeper than just those two incidents that we managed to survive. It is certainly heartening that our civil servants keep on refusing to obey what are clearly illegal orders from the President. Sally Yates refused to enforce a Muslim ban that she knew was unconstitutional. James Comey refused Trump’s request to drop the investigation of Michael Flynn. FBI Director Christopher Wray threatened to resign and refused Trump’s directive to fire Deputy Director Andrew McCabe. Don McGahn refused to obey the order to fire Mueller. The fact that these people stood up for the rule of law should not overshadow the fact that two of the four above were eventually fired and, more importantly, that the President continues to ask his subordinates to carry out illegal orders.
But perhaps even more troubling than the President’s actions is the fact that administration officials are simply ignoring other, less clearly illegal, orders from Trump or simply lying to the President to restrict his course of action. Defense Secretary James Mattis pointedly ignored the President’s order to ban transgender service members. White House lawyer Uttam Dhillon purposefully lied to the President about what would be necessary to fire Comey in an express attempt to prevent him from doing so. This was not just a political adviser lying to the President in order to further their own agenda, such as Stephen Miller’s talking points on immigration. This was a civil servant whose job was to protect the office of the Presidency lying to the President about the facts of the law in order to prevent what he believed would be a bad political outcome.
With Trump, we have ended up with two types of constitutional crises, occurring simultaneously. First, the President continues to give orders that are illegal and/or unconstitutional. Second, it appears that the President’s decision is not final, not because he constantly changes those decisions, which he does, but because others in the administration simply ignore or delay those decisions. Moreover, based on what we have seen already, it is clear that there are probably numerous other episodes of both kinds mentioned above that we have not yet heard about. The President is ultimately responsible for whatever his administration does. But it is not the sign of a healthy, functioning government when those actions are made either without or expressly against the President’s intentions.
Of course, the even bigger constitutional crisis is the total abdication of its constitutional duties by the Republican-controlled Congress. I have seen some argue (can’t find it now) that Trump’s actions with regard to Comey and Mueller reflect the problems with the “imperial” Presidency whose power has greatly expanded in the post-World War II period. Nothing could be further from the truth. Congress could reassert its broad constitutional authority, such as reclaiming its power to declare war, at any time. It chooses not to do so. This trend has only accelerated as the Republican party became attached to the idea that there really is no role for government. Under that approach, the requirement for Congressional oversight was abandoned, except when there was a Democratic president. For Republicans, their constitutional duties became just another political tool.
Yes, that was always true to some degree but it has become more extreme as the GOP became a far-right party. We see it most recently in Mitch McConnell’s refusal to give Merrick Garland even a hearing and allow the Senate to fulfill its constitutional duty to advise and consent on probably the most important judicial appointment in decades. We see it in his decision to refuse to join a bipartisan statement on the Russian hacking during the 2016 election, refusing to defend and protect the United States from a foreign attack. We see it today with Paul Ryan doing nothing to restrain Devin Nunes and his cohorts from conspiring to obstruct the Mueller investigation and making an enormous effort to denigrate and discredit federal law enforcement as a whole, not just Mueller. And we see it most clearly in the Republican’s refusal to rein in a rogue President who is violating the Constitution in so many ways including profiting from the office of the Presidency and obstructing and violating the rule of law.
The reality is not that we have managed to avert a constitutional crisis under Trump. It is that we are living through a prolonged constitutional crisis on multiple fronts whose outcome is not yet clear.
