It’s almost a truism to say that President Trump has launched an unprecedented assault on democracy during his first year and a half in office. Each new instance of norm-breaking holds new perils that Democrats and Republicans (whether they say it out loud or not) know will damage the foundations of American government and society.
A who’s who of veteran White House and Department of Justice officials, federal judges, and members of the news media weighed in on democratic institutions and norms in the Trump era at a recent Georgetown University Law Center "Democracy in the Balance" forum. Although most participants at the event expressed guarded optimism about a post-Trump future, they also registered deep unease about the continuing threats to a free press, the rule of law, and an independent judiciary.
The Justice Department has been a primary target of some of Trump’s most blatant violations of American democratic norms. From his relentless public attacks on individual officials to his private interactions with former FBI Director James Comey and provocative comments about the pending investigations into Russian meddling in the 2016 election, the president has repeatedly breached the firewall between the White House and Justice Department.
Don Verrilli, President Obama’s solicitor general from 2011 to 2016, noted that the danger of an administration using the Justice Department to punish its enemies or shield its allies was “the great lesson of Watergate.” “That’s dangerous enough a power when left unchecked and unconstrained on its own,” Verrilli continued. “But what about a situation where the president of the United States and those around him are directing the use of that awesome power for their own ends?”
Verrilli and others took solace in the fact that while Trump has certainly bent norms, he has not completely broken them, pointing to the continuing special counsel investigation as an example of the Justice Department’s willingness to fight to preserve its prerogatives.
“Those norms are not required by law … but they have really taken on an extraordinary power,” said Jack Goldsmith, who served as head of the DOJ’s Office of Legal Counsel during George W. Bush’s presidency. “President Trump is utterly indifferent to those norms, but his political appointees in the Justice Department are not,” Goldsmith added. “They’ve held so far and have really resulted in this remarkable practical independence.”
Goldsmith also noted whether there will be a return to stability after Trump depends on who the next president is, but he “suspect[s] there will be a renewed appreciation of these norms.” Verrilli agreed, adding that the next administration’s commitment to upholding democratic norms instead of abusing them to pursue personal or political ends will play a critical role in repairing the damage done by Trump.
Yet most of the participants framed Trump’s indifference to norms quite narrowly, as a rot located solely within the current administration, and refrained from blaming other parties—namely, congressional Republicans and their abdication of their constitutional duty to act as a check on the executive.
Republican leaders have shown as much indifference to the norms constraining presidential conduct as Trump himself, from Senate Majority Leader Mitch McConnell’s refusal to allow a hearing on a Senate bill to protect Robert Mueller from being fired by Trump, to Paul Ryan’s continued tolerance of House Intelligence Committee Chair Devin Nunes’s meddling in the Russia probe. With Trump implementing some of their most cherished conservative goals like revamping the tax code, they are content to look the other way.
John Bellinger, a former State Department legal adviser during the Bush II years, underlined this fundamental problem. “What I really see missing, and this is so sad, is that we don’t see senior Republican officials, either current or past, defending the Department of Justice and the FBI,” he said. “Any defense is obviously going to be a slight criticism of the president, but they just need to defend the department.”
Meanwhile, federal judges have been determined to uphold the rule of law despite Trump’s numerous attacks on court decisions he dislikes, such as the Ninth Circuit Court of Appeals’ DACA rulings. But the former federal judges who spoke at the forum warned of the harmful impacts of other actions, such as the effort by a group of Republican state lawmakers in Pennsylvania to impeach Democratic state Supreme Court justices who ruled that the state’s congressional map was an unconstitutional gerrymander.
“That harkens back to a time in our country that should live in infamy, to the Southern Manifesto in the wake of Brown v. Board of Education and the effort to impeach Earl Warren in order for segregationists to hold on to their power,” said Timothy Lewis, a former judge on the Third Circuit Court of Appeals. Lewis also noted that when McConnell denied Merrick Garland, Obama’s Supreme Court nominee, the courtesy of a hearing in 2016, “that reflected something different about values and respect for traditions and norms by the Republican-controlled U.S. Senate.”
There’s also a sinister “something different” on the conservative side of the media landscape, said MSNBC’s Nicolle Wallace. Rejecting the suggestion that MSNBC and Fox News are two sides of the same coin, Wallace, who served as White House communications director during the Bush II presidency said flatly that “This is on Republicans.”
“The idea that they’re the same is not true. One side is inciting violence against the FBI, is spreading lies on behalf of the president, and is really echoing what Vladimir Putin is saying about America and foreign policy,” Wallace said. “The other side has to put all their scripts through standards … it’s an asymmetrical advantage.”
Former Acting Attorney General Sally Yates, who moderated the event, noted that “our institutions are basically holding.” “But holding isn’t really good enough,” she added, “because public confidence in these institutions is equally important to the health of our democracy.” With the country at risk because of the president’s abuses of power, it is critical that people be able to pinpoint how the Trump administration and conservative media outlets are aiding and abetting those abuses.