Donald Trump (AP/Carolyn Kaster)

Is Donald Trump above the law? He clearly thinks so — and the threat to democracy is real

That letter from Trump's lawyers isn't bluster: Our president thinks he's a king, and holds the law in contempt


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Chauncey DeVega
June 4, 2018 10:00AM (UTC)

Democracies often do not die amid thunderous applause or massive explosions. Instead, their deaths are announced with a series of whimpers and grunts and groans, ugly sad exhalations made over and over again. This is America in the age of Donald Trump.

Beginning with Trump's 2016 campaign and now through to the second year of his presidency, for Salon and my podcast I have spoken with dozens of the world's leading historians, sociologists, political scientists, philosophers, psychologists, psychiatrists and journalists, as well as former intelligence and other national security experts about the crisis and threat to American democracy posed by Trump.

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There is a consensus: Donald Trump is an authoritarian and a demagogue. He means what he says. None of Trump's words or threats are empty or mere hyperbole.

The rule of law is the only thing protecting America and the country's citizens from Trump, the Republican Party and their allies' campaign against democracy, civil rights and the common good.

On Saturday afternoon, The New York Times published a confidential memo from Trump's attorneys which was sent to Justice Department Special Counsel Robert Mueller earlier this year. This document is ominous: It reveals how just how imperiled and under assault the Constitution and rule of law are under Trump's presidency. Once more it is tempting to announce that a type of Rubicon has been crossed in America. But in truth every day seems to bring a new low in our ongoing civic disaster.

Trump's lawyers, the Times reminds us, have asserted "that he cannot be compelled to testify" either to Mueller or before a grand jury, and argued in the confidential letter "that he could not possibly have committed obstruction [of justice] because he has unfettered authority over all federal investigations."

In a brash assertion of presidential power, the 20-page letter . . . contends that the president cannot illegally obstruct any aspect of the investigation into Russia’s election meddling because the Constitution empowers him to, “if he wished, terminate the inquiry, or even exercise his power to pardon.”

Mr. Trump’s lawyers fear that if he answers questions, either voluntarily or in front of a grand jury, he risks exposing himself to accusations of lying to investigators, a potential crime or impeachable offense.

As the Times reporters drily continue, Trump’s "broad interpretation of executive authority is novel" and may ultimately be tested in court. In essence, Trump's lawyers have claimed that Trump is the law, an American king who may not rule by divine right but certainly believes that he is the embodiment of the State and the ultimate decider of justice.

The Times' Charlie Savage offered additional analysis of the claim that Trump is free to "terminate" Mueller's investigation at any time, "or even exercise his power to pardon if he so desired":

This is the most sweeping legal claim in the letter: Even if Mr. Trump did order an investigation shut down and fire the F.B.I. director as part of a cover-up of wrongdoing, his lawyers say he still did not violate the law because he was exercising powers the Constitution has granted exclusively to him. Under this view, it would be unconstitutional to apply obstruction-of-justice statutes enacted by Congress to limit how a president chooses to use his power to supervise the executive branch.

Even as they plotted to subvert the Constitution and further shatter any institutional restraints on their client, Trump's lawyers blithely denied any such intentions. They assured the special counsel's office that "the president of the United States is not above the law" but insisted that he "should not be subjected to strained readings and forced applications of clearly irrelevant statutes."

If matters were not so serious these deflections would be laughable, a clumsy and transparent gesture of respect for democracy and the rule of law that is really aimed at undermining such values.

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What comes next in this American political tragicomedy?

Unfortunately, the majority of Americans are still stuck in a sense of learned helplessness. Most of us have adjusted to Trump's malignant reality and his efforts to undermine and destroy the country's democratic norms, institutions and culture. Too many Americans simply lack basic civic literacy and have lost faith in democracy. There will be no massive protests, strikes or civil disruption.

Trump's supporters are cheering it all on, of course. Trump is their hero, a tool for a white-rage temper tantrums against "liberal elites," nonwhites, Barack Obama, immigrants and all those who have supposedly been telling the "forgotten men and women" what to do for so long. Democracy be damned.

The Democratic Party remains too disorganized to respond in a unified or coherent fashion. For years, it has been consistently outmaneuvered by Republicans, the right-wing media and (now) Donald Trump. Democrats continue to be losers in their struggle to stop this widespread assault on democracy. I believe the primary explanation is that Democrats cling to outmoded notions of political decency, respect for norms and a general belief that human beings are rational and reasonable. Michelle Obama and Hillary Clinton's battle cry that, "When they go low, we go high" is a prescription for defeat and a distillation of the problem.

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The Democrats are actually so cowed that House Minority Leader Nancy Pelosi recently announced the Democratic Party would not try to impeach Donald Trump if they win back a legislative majority this fall. Republicans set no such limitations on themselves. To borrow the sports cliché, for them, "winning isn't everything, it's the only thing."

Ultimately, Republicans have decided that partisanship and power are more important than patriotism and the common good. Republican leaders and other elites have decided to protect Trump by attacking and undermining Mueller's investigation into Russian interference and Trump and his inner circle's efforts to obstruct justice. As neatly summarized by former House Speaker John Boehner at a conference in Michigan last week, "There is no Republican Party. There's a Trump party. The Republican Party is kinda taking a nap somewhere."

The American corporate news media, for the most part, continues to aid and abet Donald Trump by refusing to name his lies as such (they are often described instead as "misstatements," "falsehoods," "exaggerations" or "deflections"), offering a platform for his professional liars and other propagandists and engaging in dangerous exercises of "both sides do it" or "what-aboutism." The media's professional commitment to "balance" and "fairness" becomes meaningless when one side of the debate has utter disdain for democracy and the very idea of a free and independent press.

Harvard University professor Steven Levitsky, co-author (with Daniel Ziblatt) of the new book "How Democracies Die," explained to me by email how partisanship clouds the ability of Trump's supporters to comprehend the mountains of damning evidence against him.

These latest revelations will have very little impact on public opinion. Indeed, Trump has climbed several points in the polls since we last spoke. For Trump voters I think it is less rationalization than 1. Low information and 2. Partisan filtering. Many voters are not highly informed about the investigation, and many of those who are get their information from partisan news sources. So they see this as Trump and Sean Hannity do: as fake news, and worse, as part of a broader effort (that includes the FBI) to destroy Trump. The main reason why big news like this does not move public opinion much is that it is being filtered in totally different ways.

I also asked Brian Klaas, who is a fellow in comparative politics at the London School of Economics, and author of "The Despot's Apprentice: Donald Trump's Attack on Democracy," for his thoughts on Trump's most recent assault on the rule of law in America. Klaas explained to me by email how:

In democracies, presidents are subject to the rule of law. President Trump mistakenly believes that the rule of law is subject to him. But perhaps this should not be so shocking; after all, should we really expect that a man who attacks the press, threatens to jail his opponents, scapegoats minorities, violates ethics rules, hires unqualified cronies and family members, and lies constantly while obsessing about ratings and crowd size would suddenly be committed to the rule of law? Trump’s authoritarian impulses have been obvious to anyone who has been paying attention. The difference now is that he is putting them into consequential action, with an attempt to subvert a basic principle of democratic governance: that nobody is above the law.

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In total, I largely agree with Jonathan Chait who wrote the following last week in response to a New York Times report about how Donald Trump has repeatedly pressured Attorney General Jeff Sessions -- who recused himself from the Russia investigation, incurring the president's wrath -- to shut down the Mueller probe.

This falls into the category of "shocking, but not surprising," the kinds of Watergate-level abuses of power we learn about every week. Trump believes he is entitled to run the federal law-enforcement apparatus for his personal and political benefit, sparing his friends and subjecting his allies to merciless harassment. Trump is incorrigibly authoritarian, and the conservative habit of analyzing this conflict as if Trump is not bent on corrupting law enforcement into an authoritarian tool is a way of avoiding the central issue. The Constitution is not going to be safe as long as Trump occupies the Oval Office.

Donald Trump's rise to power is a horrible civics lesson for the American people. The Constitution, and the laws and rules that derive their power from it, are intended to protect America from demagogues and tyrants. But informal norms and unwritten rules are at least as important as written and formal ones in nurturing and protecting a healthy democracy. What happens when any democracy has a leader, a political party and tens of millions of citizens who hold such standards in contempt? Nothing good. Donald Trump is that teachable moment on a global stage.

Why Russia helped Trump win

Former director of national intelligence James Clapper on Russia's motivations for meddling in the 2016 election.


Chauncey DeVega

Chauncey DeVega is a politics staff writer for Salon. His essays can also be found at Chaunceydevega.com. He also hosts a weekly podcast, The Chauncey DeVega Show. Chauncey can be followed on Twitter and Facebook.

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