There is nothing remotely normal about this presidency or this administration. But "not normal" may not be the same thing as not legal—and that's exposing the flaws of our Constitution.
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We’ve all had moments when we’ve revealed our thoughts out loud, much like a had-one-too-many man or woman drunk-texting an ex in the middle of the night. The next morning we recall the events with embarrassment and vow to do better.
But what about when thinking out loud happens on a world stage, with, let’s say, the President of the United States and the so-called leader of the free world? Case in point: Earlier this month, around midnight, @realDonaldTrump tweeted, “Despite the negative press covfefe.” His gaffe remained on the internet for almost six hours without a follow-up or correction from his “team.” Almost immediately, various memes started to circulate about the meaning of “covfefe,” a word that doesn’t exist in the English language. This past Monday, Sean Spicer, whom Trump is pushing out of his role as White House press secretary, decided to hold a press conference where he mandated no audio or live coverage. Reporters could report only on what he said. Between covefe and this recent media blackout, what’s next for a White House that’s run with no regard for presidential protocol?
This off-the-cuff tweeting and new “rules” follows a long line of blunders from a president who has no experience being in office—no experience, and no desire to learn on the job. Trump is ignorant of all historical norms associated with the highest office in the land. Rick Stengel, former Kerry State department official and Time magazine editor, in his comments on The 11th Hour With Brian Williams, emphasizes that on-the-job learning comes with the territory, but Trump has a steeper curve since he is “coming from much further back than everybody else.” Stengel says Trump is such a novice that he “had to discover that there were three branches of government, for example.”
Apparently, though, Trump is not the only one with the learning curve. The American people underestimated the dizzying pace in which Trump chose to violate one norm after another. For the entire country—and the world—it has become a shocking crash course in gauging the difference between norms and laws. Shauna of Golden Gate Blond deconstructs the American naïveté and makes it painfully clear how tenuous the concept of democracy can become:
Even though it hasn’t yet been proven that Trump has broken any laws, his composing a nonsense sentence in the middle of the night and tweeting it to the entire world is imminent cause for concern. It demonstrates that the system should alter its course and laws need to be enacted to vet candidates to determine whether an individual is qualified to run for the President of the United States. Every single day it is abundantly clear that our 45th president is not willing to lend the gravitas necessary for the office.
Historically, presidents seek to deliver messages to constituents in a personal, but measured manner. Franklin D. Roosevelt gave his first radio address covering banking, dubbed the “Fireside Chats” in 1933. Dwight D. Eisenhower, going a step further, used the latest technology and conducted televised chats, setting the precedent for press conferences. Subsequent presidents— from Kennedy to Obama— regularly employed established forms of communication to the American public, such as news conferences and careful (emphasis on the word careful) use of social media. These forms of communication offered the populace grander insights into the president’s agenda and policies.
Given this history, it isn’t abnormal for Trump to reach out to the public, but it is the way he uses Twitter as a bully pulpit to deliver his message that is a flagrant violation of normal presidential behavior. This non-presidential behavior shouldn’t come as a surprise to the public. The red flags were present from the beginning. In his first official meeting with congressional members Trump falsely claimed million of immigrants voted illegally in the election and skewed the popular vote, even though no evidence of this existed. He amplified the crowd numbers at the inauguration claiming it was the “largest crowd” to witness such an event. His interest in gravitating toward delusional behavior, lying and breaking norms presents a worthy inquiry for those who question his approach to the presidency and his potential illegality in these matters.
He’s occupied the office for just under six months, but consider the norms he has violated:
Trump promised to release his tax returns if he was elected president. In making that pledge he joined a long line of men who were raised to office. Richard Nixon, Jimmy Carter, Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, Barack Obama—the seven presidents prior to 45th president—disclosed their tax returns. However, President Trump continues to withhold his tax returns, and has no intention of releasing them, thereby overturning precedent present for over 40 years. The tradition of releasing tax returns began with Nixon, who in 1973 famously said, “People have got to know whether or not their president is a crook. Well, I am not a crook.” Releasing them represents not only the veracity of a president’s tax returns, but also creates transparency with the American public. Trump isn’t interested in doing either.
His lack of financial disclosures is often fodder for those who assert he is breaking the law. To clarify, Trump’s conduct is a departure from the past and a blatant disregard for norms. But he isn’t doing anything illegal. Current law doesn’t require a presidential nominee or a sitting president to release them.
Prior to taking office, all presidents typically take care of private affairs with full disclosure in order to avoid conflicts of interest to preserve the integrity of the office. Since the 1970s, presidents typically sell their assets, place them in a blind trust with the particulars remaining unknown to avoid shaping policy that is favorable to those interests. By setting up this arrangement, it squashes the need to raise concerns about shady dealings and insider trading. This is of particular concern with Trump, since he has many interests domestically, as well as abroad, from over 500 companies, including countries such as Saudi Arabia, China, and the United Arab Emirates. Trump “says” he has taken care of these conflicts, but yet the public isn’t privy as to how he has addressed these matters. The solution Trump seems to think will satisfy this requirement is to hand over his businesses to his sons, but that doesn’t create enough distance, but only perpetuates his lack of concern in preserving the sanctity of the office.
Nepotism is openly allowed in Trump’s presidency. His daughter Ivanka and his son-in-law Jared Kushner attend meetings with political figures and occupy offices in the White House. Does this violate the 1967 anti-nepotism law, which specifically prevents the president from hiring family members to Cabinet or agency jobs? It was created in response to John F. Kennedy’s appointment of his brother Robert F. Kennedy as attorney general. A judge ruled that it doesn’t apply to White House jobs. Since Jared and Ivanka are volunteers, they don’t violate the anti-nepotism law.
He personally attacks the judiciary without reservation. After a judge blocked his travel ban, Trump tweeted, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” These hasty remarks aren’t the hallmarks of past presidents. Thomas Jefferson frequently disagreed with Supreme Court Justice John Marshall, but exercised restraint in his public remarks. He disagreed with Marshall’s twisting of the law and made his opinion known privately, but he never made it personal by airing his grievances in public.
Historically there is a read-between-the-lines automatic respect among the branches of government. Trump ignores this history and treats the branches like they are corporate raiders wanting to stage a coup.
In foreign matters, Trump routinely insults other heads of state. In May, he spoke unfavorably about Germany as a result of a disagreement in trade policies. “The Germans are bad, very bad. See the millions of cars they sell in the U.S., terrible. We will stop this,” said Trump. His insults aren’t limited to verbal attacks. At a meeting with other NATO leaders, he blatantly shoved Montenegro Prime Minister Dusko Markovic, in order to be front and center in a photo op. We know it wasn’t an accident because upon getting to the front of the group, Trump pointedly adjusted his suit jacket giving notice that he wasn’t giving up the spotlight without a fight.
Trump is displaying behavior that is clearly questionable and straddles legality: He fired James Comey, the FBI director who at the time of his dismissal was actively investigating Trump’s connection to the Russians. Suspicious? Yes. Illegal? No. Government employees fall under the at-will doctrine and under this well-established law, a person can be fired with or without cause. Government employees serve at the pleasure of the president. But, wait, what about the veiled threat that Trump announced after Comey was fired. He said, “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” Are presidents breaking the law by secretly taping conversations? The truth is he is under the protection of the law if he chooses to record the conversations and isn’t required to obtain consent from the recorded individual. Lyndon B. Johnson, Richard Nixon, and FDR were known to record their official conversations. The caveat? If Trump were asked by Congress to hand those tapes over, he would have to comply.
Part of Trump’s break with norms is connected to the authority given to him by the Constitution. This document offers presidents wide latitude in what they can do and say.
Last month, Trump told Russian officials details about ISIS, including additional information that most described as classified and most thought it was illegal for him to do so and betray our country. Yes, it is rare and unprecedented that a president would reveal classified information to a foreign official in a private meeting or disclose matters that may have have long-term repercussions, but Trump wasn’t breaking any laws by doing so. The moment a president chooses to reveal information it becomes declassified and the likelihood of him being impeached is slim because of the Constitution’s latitude. Although he may have not broken any laws, most presidents have a full discussion with the members of their cabinet before revealing classified information.
Are these unwise decisions? Is it setting a dangerous precedent? Is he threatening democracy? The answer to all of these questions is a resounding yes. He manages to push his agenda through with a series of controversial executive orders. In his first 100 days, Trump has signed 50 executive orders and memoranda. The controversial orders of building a wall between Mexico and the United States and the ban on refugees from certain Muslim territories tops the list of questionable legislation. Although Trump swiftly declared these executive orders as “law,” this isn’t quite the case. Trump adopts a frantic, crazed approach to signing executive orders on climate change, health care, and other areas, but signing a piece of paper is quite different than effecting change. At this pace he is averaging 108 executive orders per year, compared to Obama’s 36.
His unprecedented flurry of orders play into his use of theatrics and pandering to going with his gut, instead of researching an issue, consulting his cabinet and seeking Congress’s support. Executive orders carry the weight of law behind them, but just as easily as orders are established, they can be altered by a subsequent president. This is expressed in the landmark case in 1952, Youngstown Sheet and Tube Company vs. Sawyer, which reminds the president that his executive power has limits. The reason for the case? President Harry Truman signed an executive order seizing property from a private entity. The Supreme Court ruled “concluding that nothing in the Constitution authorized the president to seize property in wartime without approval from Congress.” Trump erroneously believes he is “legislating” but his perspective is without merit.
The precedent set in Youngstown allowed Judge Ann Donnell to issue a stay from Trump’s controversial immigration ban. As much as Trump prefers to wield his power through his executive power, it is limited, because the judiciary has the power to rebuke an order that constitutes an overreach. When the judiciary doesn’t step in, there can be considerable pushback from Congress. Trump yearns to make good on his campaign promise to build a wall, but the question still remains, how will fit be funded if Congress disapproves?
Some lawmakers argue that Trump’s defiance may signal a bigger issue. Is he mentally fit to serve? In a series of comments, he’s called North Korean leader, Kim Jong-un, a “smart cookie,” can’t understand why the Civil War in the United States couldn’t work out, and has accused Obama of wiretapping his hotel during the election. Coupled with these words, his use of Twitter as a misdirected vehicle to legislate and his narcissism, this is a departure from the norms of any past presidents. It is precisely this erratic behavior that prompted 35 mental-health professionals to address and sign a letter to the New York TImes as a warning of the president’s mental health. They proclaimed, “We fear that too much is at stake to be silent any longer.” This aberration from traditional mores has other legislators alarmed enough to address it. Representative Ted Lieu plans to introduce a bill that requires a psychiatrist or psychologist in the White House.
Other legislators like Representative Earl Blumenauer called on colleagues in April of this year to look at the 25th Amendment to remove the president. Under this amendment, “a president can be removed if the vice-president and a majority of cabinet members send written notice to congressional leaders that the president is ‘unable to discharge the powers and duties of his office.'” The removal of a president under the 25th Amendment is unprecedented, but so is Trump’s behavior. Currently there is no co-sponsor for the bill, so whether this proposed legislation passes beyond a mere introduction is up for debate.
Last week, the attorney generals in the District of Columbia and Maryland felt there was an impetus to file suit against Trump for his “flagrant violation” of the Emolument’s clause of the Constitution. Since Trump elected to hand off his businesses to his sons, there is no clarity on whether the actions he takes as president benefits the country or one of his several businesses. Unlike the 25th Amendment inquiry, legal experts seem to think this case has the best chance to reach the Supreme Court.
The president continues to call attention to his behavior and follows his own trends on what is normal. Last week, Trump continued his tradition of badmouthing foreign leaders when he attacked the London mayor following a terrorist attack on the U.K. city, tweeting: “pathetic excuse by London Mayor Sadiq Khan who had to think fast on his “no reason to be alarmed” statement. MSM is working hard to sell it!” Is attacking the mayor of London presidential? Of course not. It is precisely these reckless tweets that pushed Representative Mike Quigley of Illinois to introduce the “Covfefe Act” or alternatively the Communications Over Various Feeds Electronically For Engagement” Act. This would effectively amend the Presidential Records Act and require that presidential tweets and other social-media interactions be preserved in the National Archives. Quigley asserts “tweets are powerful and the president must be held accountable for every post.”
Whether the legislation will be move past these preliminary stages remains to be seen. In the meantime, the legacy of our democracy’s foundation will invite continual abuse—Trump isn’t ready to compromise on his personal “norms,” even if they are incongruent with those adopted by the rest of the world.
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