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How the Republican Party is effectively placing Donald Trump above the law

Illustration/Joseph Qiu/Listener

The Republicans' strategy of not co-operating with Congress is undermining the system of checks and balances enshrined in the US Constitution.

Any hope that US politics would return to something resembling normality following the conclusion of special counsel Robert Mueller’s investigation has been exposed as wishful thinking. If anything, the opposite is true: politics was in a holding pattern while Mueller went about his work. Perhaps a better analogy is that the Mueller probe was a phoney war and now battle is being joined in earnest.

On May 11, the Washington Post reported that the White House is working to block more than 20 separate investigations into Donald Trump’s actions as president, his personal finances and administration policies. So far, the administration has failed to respond to or comply with about 80 requests for documents or other information.

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Trump has invoked executive privilege to try to block Congress from seeing the unredacted Mueller report and prevent former White House counsel and key Mueller witness Don McGahn from testifying before congressional committees. He has also intervened to try to stop Mueller appearing before Congress, even though, in Trump’s telling, the special counsel’s findings amounted to “total exoneration”. Trump’s Attorney General, William Barr, is in the process of being declared in contempt of Congress for failing to produce the unredacted report and Treasury Secretary Steven Mnuchin is refusing to provide Trump’s tax returns despite seemingly being legally obliged to do so. Many of these actions and non-actions will be challenged in court.

As the Post put it: “The non-co-operation strategy has shifted from partial resistance to all-out war, a strategy experts fear could undermine the institutional power of Congress for decades to come.”

One such expert is Kerry Kircher, who was House of Representatives general counsel under the previous Republican majority. “If the court signs off on this stuff, then we’ll have an imperial presidency. We’ll have a presidency that will be largely unchecked.”

Robert Mueller. Photo/Getty Images

In bad faith

The White House/Republican response is that non-co-operation is justified because this isn’t Congress exercising oversight of the executive branch in accordance with the Founding Fathers’ vision of a system of separation of powers and checks and balances; it’s a politically motivated fishing expedition by an embittered Democratic Party that had banked on Mueller finding the proverbial “smoking gun”.

Mnuchin’s justification for refusing to hand over Trump’s tax returns, therefore, was that the congressional committee’s demand had “no legitimate legislative purpose”. It remains to be seen whether the courts will agree that a political appointee can make that determination. However, law professor Tom Campbell, a former Republican congressman, insists, “These are perfectly legitimate oversight functions. No system – even one as brilliantly constructed as the US Constitution – works without good faith … When good faith falls apart, the ability for the Constitution to work is compromised.”

It would seem to be a corollary of the Department of Justice policy that a sitting president can’t be indicted that Congress should have access to the information it requires in order to decide whether a president’s actions rise to the level of an impeachable offence. If a president can’t be indicted and Congress is denied access to evidence that might form the basis of impeachment proceedings, the president is effectively above the law. Which, according to his opponents, is precisely how Trump sees himself and intends to remain.

The president “must not be permitted to operate a lawless administration and become a king”, says House Judiciary Committee chairman Jerrold Nadler. “You cannot have a government in which the president can conceal all information about his own wrongdoing.”

William Barr. Photo/Getty Images

It’s payback time

House Speaker Nancy Pelosi worries that Trump won’t voluntarily cede power if he loses the 2020 election narrowly, a concern echoed by economist Robert Reich, secretary of labour in the Clinton Administration. Reich suggested in the Guardian that Trump’s deep-state conspiracy theorising and unsubstantiated claims of voter fraud involving illegal immigrants are laying the groundwork for a refusal to accept an adverse election outcome.

Again, this can be dismissed as alarmism by political opponents, although the Trump camp is hardly going out of its way to allay such fears.

Trump recently retweeted evangelist Jerry Falwell Jr’s preposterous assertion that “reparations” are due: “Trump should have two years added to his first term as payback for time stolen by the corrupt failed coup.” As is Trump’s wont, he riffed on the idea at a campaign rally while claiming he was just trolling the media and the Democrats.

But, with Trump, there’s no such thing as a throwaway line, says Ruth Ben-Ghiat, a New York University history professor who focuses on authoritarianism: “Everything he says is a trial balloon – even his ‘jokes’ are trial balloons. Authoritarians are continually testing the boundaries to see what they can get away with.”

The term “imperial presidency” comes from the title of Arthur Schlesinger Jr’s 1973 book in which the historian argued that the office had exceeded its constitutional limits.

In light of what’s occurring, Schlesinger’s warning to the American people seems alarmingly prescient: “What kept a strong president constitutional, in addition to checks and balances incorporated within his own breast, was the vigilance of the nation. Neither impeachment nor repentance would make much difference if the people themselves had come to an unconscious acceptance of the imperial presidency. The Constitution could not hold the nation to ideals it was determined to betray.”

We know Trump’s breast is a checks-and-balances-free zone, which puts the onus squarely on the people. Given the polarisation in US society, Republican gerrymandering and voter-suppression efforts, and the mountain of money the donor class will outlay to preserve a status quo in which billionaires get tax cuts, that’s not particularly reassuring.

It may be, however, that the problem and the solution are one and the same. Voter turnout at last year’s midterm elections, which saw the Democrats take control of the House of Representatives, was 53.8%, the highest in four decades. At the time, University of Florida political scientist Michael McDonald predicted another record turnout in 2020: “The same issues, the same driving factors that are driving turnout will be present. The obvious explanation is Donald Trump.”

This article was first published in the May 25, 2019 issue of the New Zealand Listener.