Legal scholar Tobias Barrington Wolff identifies some of the crises that will likely accompany the end of this dangerous and unstable administration.
The downward spiral of the Trump administration is unmistakable and alarming. In barely five months, the United States’ position of leadership on the world stage has evaporated. Here at home, we barely have a functioning government, with many important positions still unfilled, the expert civil service being sidelined, and the current president lurching from one self-inflicted crisis to the next.
This is what a failed presidency looks like. And it is appalling.
As this crisis unfolds, most public discussion has focused on the day-to-day: What new revelations have come to light in the investigation into collusion and Russian sabotage of our elections? Who will be forced out of the White House next? Who will be indicted first? Will there be impeachment proceedings?
The breathless coverage of daily events is unavoidable, but it is also insufficient. We need to prepare for what will follow this catastrophic presidency.
What Will the End Look Like?
Whether by resignation, impeachment following a Democratic takeover of the House in 2018, or impeachment in the current Congress, this presidency must end before four years have elapsed. We do not know what the end will look like, but we know one thing with certainty: When the end comes, Donald J. Trump will care only for his personal interests and will have no regard for the United States and its place in the world, our democratic institutions, or the Republican Party that has defended him so loyally.
From early days, I’d suspected that Mr. Trump planned to use his vaudeville routine of a presidential candidacy as a vehicle for creating a media conglomerate—the Trump Network, presumably—that would have competed with the aging Fox News Channel and monetize the outrage he spent his campaign inciting. Actually winning in the Electoral College was as much a shock to him as to the rest of us, and thus far he has been limited to penny-ante grifting: jacking up the membership costs for his Florida club, Mar-a-Lago, and using the presidency to entice people to join; spending time at his commercial properties to give them free advertising and pump up the brand; holding Emoluments events to let foreign diplomats know that their governments should pay top dollar to stay at his Washington hotel if they want to remain in favor. This family views the presidency as a “once in a lifetime opportunity” to “launch a broad-based commercial brand,” as Melania Trump’s lawyers have said.
When the end of his presidency comes, this man’s sole priority will be to maximize his profit while propping up his ego. If undermining the rule of law and spreading a toxic lack of faith in the legitimacy of government by screaming “witch-hunt” and “coup d’etat” will allow him to monetize the rage surrounding his departure, then that is what he will do. If demonizing the Republican Party and destroying their electoral prospects will buttress his fragile ego, then destroy the Republicans he shall. If hurtling American foreign policy into chaos or sabotaging domestic insurance markets will produce distractions that could give him a safer exit ramp from the presidency, then he will create an emergency and damn the consequences.
The end of this presidency will involve wanton destruction and piracy. We need to prepare.
Before he leaves office, the current president will issue himself and his favored family members blanket universal pardons that insulate them from all federal criminal exposure for any offenses they have committed since the beginning of time.
The potential exposure of the current president and his family to federal criminal liability appears to be considerable. From the prospect of violations of the Foreign Corrupt Practices Act in their dealings with Azerbaijan and the appearance of money laundering in their collaboration with Russian financiers to the obstruction of justice in conjunction with the Russia investigation, the danger is broad and deep. And the family patriarch is an amoral narcissist with a constitutional power that could make it all go away.
A presidential pardon is usually framed in specific terms, naming a discrete offense and the terms of the pardon or clemency offered. For example, when President George W. Bush commuted the sentence of Scooter Libby for perjury and obstruction of justice in conjunction with the improper exposure of CIA operative Valerie Plame’s identity, he identified the conviction for which he would give clemency and the specific portions of the sentence that he would commute. But a pardon can also operate in blanket terms, and it need not wait for an indictment. Most notably, on Christmas Day of 1868, President Andrew Johnson used the pardon power to grant “unconditionally and without reservation, to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason against the United States or of adhering to their enemies during the late civil war.”
Under normal circumstances, presidential pardons are the result of an application process run through the Office of the Pardon Attorney in the Department of Justice, where a professional staff investigates requests and provides advice and guidance to the president. But this process is purely voluntary: The pardon power lies within a president’s sole discretion. A president can abuse the pardon, of course, just like any other power. That was the charge levied at President Clinton when he pardoned wealthy donor Marc Rich, who was a fugitive under indictment for charges of fraud, racketeering, and tax evasion. As with any other abuse of presidential power, if the abuse is serious enough, Congress may decide it constitutes a basis for impeachment. (Law professor Alan Dershowitz appears confused about this proposition in his attempts to defend the current president.) But even in such a case, the pardon itself is absolute and irreversible.
Whether a president can pardon himself is subject to debate. No president has ever performed a self-pardon, though President Nixon reportedly contemplated it. Some commentators have argued that self-pardons are constitutionally impermissible, though the textual basis for that argument is uncertain. But that very uncertainty would operate in the current president’s favor. Even if he is removed through impeachment—a process that specifically contemplates criminal indictment following removal—a self-pardon would introduce an obstacle to conviction that the Supreme Court of the United States would have to resolve, probably taking years and perhaps sapping the political will to continue with a polarizing prosecution. And a president’s power to pardon others is absolute. If he wishes, the current president can give Ivanka Trump, Jared Kushner, Paul Manafort, and anyone else in his inner circle permanent immunity for any federal offense they have ever committed.
It is inconceivable that this man would be in a position to use a get-out-of-jail-free card for himself and his favored family members without using it. The pardons are going to happen.
Vice-President Mike Pence
It may already be too late for Vice-President Pence to survive this crisis.
Recent developments suggest that Mr. Pence may have personal exposure for obstruction of justice. As he admits, Mr. Pence was involved in discussions with the current president about the firing of James Comey as FBI Director, yet he claimed that Mr. Comey’s firing had nothing to do with the Russia investigation—only to have the sitting president announce on television the next day that he fired Mr. Comey because of the Russia investigation. And when the public exposure of Michael Flynn’s misconduct as a paid foreign agent led to Flynn’s termination as National Security Advisor, Mr. Pence implausibly insisted that the public reporting of Flynn’s activities was “the first [he had] heard of it”—despite the fact that Mr. Pence was the head of the presidential transition and Members of Congress had sent him an urgent letter alerting the transition to Flynn’s improper activities. If Mr. Pence can be shown to have lied about these matters, then he is done.
But the vice-president’s vulnerabilities do not stop there. In order to avoid being implicated in the spiraling misconduct of this administration, Mr. Pence must maintain that he has no earthly idea what is happening in this White House and never has. That is not a recipe for political survival, and the effort has already made him look ridiculous. More important, every time Mr. Pence affirmatively defends and justifies the unstable, corrupt, destructive behavior of the current president, he owns the man’s misconduct.
Up to this point, the vice-president’s complicity has been little more than a sideshow. But if the Trump presidency does end early, Mr. Pence is next in the line of succession and his months of complicity will become the nation’s primary focus.
In order to survive and have any chance for a viable presidency, I judge that Mr. Pence would have to formally repudiate the current president, express no confidence in him, and announce that he cannot continue as an active part of the administration. This would result in his immediate banishment, of course. But a vice president cannot be fired; he can only be removed through impeachment. Even following a repudiation of the current administration, Mr. Pence could remain in office. Taking a cue from John Adams, the first man to occupy his office, Vice-President Pence could take up his constitutional role as President of the Senate and move to Capitol Hill, formally cutting loose from the current White House. The hope would be that he could redeem himself for his earlier complicity through self-imposed banishment. He could stand ready to invoke the 25th Amendment if a consensus emerged among the Principal Officers and Congress that the current president is “unable to discharge the duties of his office” by reason of his mental instability. And when the Trump presidency ended, he could emerge from banishment and argue that his slate had been wiped clean.
It may already be too late for Vice-President Pence to save himself by repudiating the administration and accepting banishment, but I believe it is his only hope. With every passing week, the option becomes more tenuous.
Our Two-Party System
The prospects for the Republican Party may be even graver than the prospects for the vice-president. Mr. Pence is one man. The question whether he can survive this crisis is important, but if the answer is no then another official in the line of succession will step into the breach. There is no orderly line of succession if one of our major political parties collapses. And I do not know whether the Republican Party will escape the collapse of this administration.
The GOP has been turning itself into the Party of Trump for decades. The amoral showman in the White House did not appear from nowhere. He is the apotheosis of the Fox News, right-wing talk radio, nihilistic politics of destruction that have been the GOP’s stock-in-trade since the presidency of Bill Clinton. As many from their own ranks now admit, Republicans no longer know how to govern. All they have left is scorched-earth opposition. That nihilism now has a face and a voice in the current president.
After this crisis is over, we will need two functional national political parties to speak for the majority of Americans and restore us to some kind of normal governance. But how does the Republican Party step back from being the Party of Trump? Having embraced a bigoted demagogue, how does the GOP repudiate bigotry and reject the next demagogue who tries to take over their party? Having participated in the systematic gaslighting of America in order to validate the warped reality of a pathological narcissist, how does the GOP speak with integrity again? Having stolen a Supreme Court nomination and blown up the filibuster to complete the theft; having destroyed regular order in the Senate to craft a health-care bill in secret that would take coverage away from millions of Americans and regulate a sixth of the economy with no hearings and no public discussion—after what they have turned themselves into, how does the GOP return to responsible governance?
This is the worst crisis in the modern history of the American presidency. As it continues to unfold, newscasters and commentators will fill every passing day with speculation about what happens next. But that is not enough. We need to prepare for what comes after.
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