Democracy Dies By A Thousand Cuts

It as hardly surprising to see Donald Trump once again shred the principles of our democracy in his State of the Union message by threatening legislative chaos and potentially war if Congressional Democrats fulfill their constitutional duty of oversight of the executive branch. It is not the first time Trump has made threats like this. In November, 2017, Trump warned that “people will die” if the investigation into his collusion with Russia continued. Destroying the guardrails of our democracy has been a feature of his entire political life.

In a remarkable move that again threatens a constitutional class, Acting Attorney General Matt Whitaker is refusing to testify to the House Judiciary Committee, basically taking the position that he will not answer critical questions about his interactions with Trump involving ongoing investigations, even if he is subpoenaed. It appears that Whitaker believed he could take the same approach that multiple Trump administration officials had taken when Republicans controlled the House, simply refusing to answer certain questions under some amorphous theory of quasi executive privilege. Democratic Chairman Jerry Nadler prepared for this by supplying Whitaker with a list of questions beforehand and requiring Whitaker to indicate whether the White house would exert executive privilege to prevent Whitaker from answering. Nadler heard nothing in return but also prepared for Whitaker’s continued refusal to answer questions by getting the Committee to authorize a subpoena prior to his testimony. If Whitaker refused to answer a question, Nadler could invoke the subpoena and force him to. This subpoena power is what prompted Whitaker to back out of testifying or at least threaten to ignore the subpoena.

I know we are inured to the continual violations of the Trump administration and everyone knows Matt Whitaker is a joke and a Trump puppet. But he is the chief law enforcement officer of this country and he is threatening to defy the perfectly lawful subpoena from a co-equal branch of government for no legal reason other than he doesn’t want to answer their questions. It’s pretty clear that Whitaker’s game plan here is to force the House to cite Whitaker for contempt and then drag that process out in the courts until well after William Barr gets confirmed as the next Attorney General. It was interesting to note that, after a delay for well over a week, today Chairman Lindsey Graham abruptly called for a vote on Barr’s nomination in the Judiciary Committee which moved the nomination to the full Senate on a party line vote.

It’s not like Congress is doing much better in upholding our constitutional principles. Earlier this week, the Senate voted by an enormous margin, 77-23, to allow states to muzzle the free speech rights of anyone who does state business from supporting the BDS movement against Israel. Disappointingly, over half the Senate Democratic caucus voted for the bill. Regardless of how one might feel about the Israeli-Palestinian conflict, the issue here is the right of free speech and this bill obliterates that right on this specific issue. As Chris van Hollen correctly noted, the bill is “blatantly unconstitutional” and the ACLU agreed, declaring, “Today the Senate chose politics over the Constitution and trampled on the First Amendment rights of all Americans”.

In addition, a number of Republicans have encouraged the President to unlawfully declare a national emergency and use funds that Congress has authorized for use on other projects to build his wall. These include the aforementioned Chairman of the Senate Judiciary Committee, Lindsey Graham, who plainly stated, “It is time for President Trump to use emergency powers to fund the construction of a border wall/barrier.” It is remarkable to see the most senior congressional leader charged with the oversight of the judicial and law enforcement branches of government advocate the executive branch use extra-constitutional powers.

Trump is already stretching constitutional limits with his deployment of military troops on the border. As Charles Pierce writes, “The president* is deploying more than 4,000 U.S. troops to engage in what is essentially a law-enforcement mission inside the borders of the United States—posse comitatus, anyone?—in response to a ‘crisis’ that exists only in his head”.

Finally, Republicans in Utah are combining their aversion to democracy with the more simple cruelty that Republicans seem to enjoy. Last November, Utahans overwhelmingly passed a referendum to force the state to sign up for Medicaid expansion. But, as in Wisconsin, Michigan, and North Carolina, the will of the people means nothing to Republican-dominated legislatures. The Utah legislature is preparing to preempt full Medicaid expansion by passing a bill that would cover less people and yet initially cost more money. Any future savings would require a waiver from the federal government that is unlikely to come and is of questionable legality to begin with. Then again, spending more money to simply deny citizens health care is in the GOP’s DNA now. And of course it defies the expressed will of the people.

There is a general consensus that our institutions of democracy have been fairly resilient under the onslaught of the last three years. As Michelle Goldberg notes, “Two years into Donald Trump’s presidency, American democracy has in many ways proved fairly resilient”. The courts have stood up to Trump’s most egregious actions and there has been no cataclysmic collapse. However, the erosion is there, taking place in small and large ways all the time. All the above stories from the recent weeks stand alone in their media reporting. But, taken together, they show how the fundamentals of our democracy are being constantly challenged.

The latest report from Freedom House ranking the world’s countries on the basis of political freedom and civil liberty has the United States at its lowest ranking in the history of the survey. The corruption and lack of accountability in the Trump administration, abetted by congressional Republicans and combined with gerrymandered Republican legislators essentially overturning the results of democratic elections, are eroding faith in our democracy. That erosion is real. And as the Whitaker refusal to testify shows, we have yet to see how far the President will go when confronted by at least one house of Congress that it determined to vigorously pursue its constitutional duties of oversight as well as the results of the Mueller investigation. As the president of Freedom House says, “Elsewhere in the world…Freedom House has watched as democratic institutions gradually succumbed to sustained pressure from an antidemocratic leadership, often after a halting start”. It is a warning for America.