“Checks and balances, Mr. Jefferson. Checks and balances,” said John Adams. We are only a republic if each of the three branches of the national government has some capacity to check the excesses of one or both of the other two. The Founders sought to ensure that no single individual or entity would ever have unlimited, unchecked power. The Founders intended legislative supremacy, but not by much. The President can veto legislation and the Supreme court can declare outlandish legislation unconstitutional.
My friends. The words constitutional crisis are thrown about too often, but I must tell you we are in one now. We are dancing on the brink of the first true constitutional crisis of our history, at least since the Civil War. We came close in 1973-74, after the Saturday Night Massacre, but in the end, Richard Nixon turned over the White House tapes. He resigned. He did not threaten to defy the US federal court system. He did not burn the tapes in the wake of the Supreme Court’s unanimous ruling that he must relinquish them to the House Judiciary Committee. Nixon did not refuse to leave office. In fact, he was so ashamed to be reduced to impeachment or resignation that he told his closest aides he hoped to go to sleep at night and never wake up again. He wanted to die of shame. In the end even Nixon was a constitutionalist. He respected the basic norms of our system. In extremis, he believed in the rule of law, though he had been playing fast and loose with the law for many years. He turned over the tapes. He left peacefully. He got on the helicopter and waved farewell.
The Trump White House has said it will not comply with the House of Representatives impeachment investigation. It has declared that the impeachment is unconstitutional, which is a ludicrous, insane assertion, since the Constitution is quite clear in vesting impeachment power solely with the House of Representatives. Still, the White House declares that it will not turn over documents and it will not let administration personnel testify before Congress, even under subpoena.
An impasse. Then what? Well, our system is designed to address that problem.
The House will presumably use the federal courts to compel the White House to cooperate in the investigation. It would be hard for the courts to side with the administration—the Constitution is quite clear about the impeachment power and in our system the Constitution trumps all other laws and protocols—but it is at least possible that the courts would side with Mr. Trump. If they did, that alone would mean the Death of the American Republic, because the courts would be saying there is no check on a President’s actions. You cannot indict a sitting President, and you cannot impeach him, either. In other words: No remedy.
Assuming the federal courts compel President Trump to cooperate with the House impeachment investigation, what happens if he simply refuses to comply with the federal court order? Now what?
Nixon turned over the tapes. There is no reason to believe that President Trump would do the same.
If Mr. Trump refuses to abide by the ruling of the federal judicial system and the House of Representatives passes articles of impeachment, as all the experts say it certainly will, then the actual last guardrail in our republican system of government, the last tool of the US Constitution in the face of a runaway executive, will be the trial in the Senate, where the Founders wisely insisted that you must muster a supermajority (67 US Senators) to remove a sitting President. This has never happened in our history, not in any of the three prior impeachment episodes, three if you count Nixon as well as Bill Clinton and Andrew Johnson.
We have read, and I believe, that if there could be a secret ballot in the Senate, twenty Republican Senators, at least and already, would vote to convict the President and remove him from office. Perhaps thirty. In other words, there is a widespread tacit agreement in the most senior political body in the United States that it would be best for the republic if Donald Trump were removed from the Presidency using this legitimate constitutional tool. But it will not be a secret ballot. Even if Senator X believes the president should be removed, even if he thinks the president should go to prison, she may not dare to make that judgment for fear that an angry mob of Trumpites will burn down her house, or shoot through his windows, or run her down while jogging. I am not joking. The fear of the wrath of Trump’s supporters is real, and it goes well beyond fear of being primaried in the next election cycle.
I hope to God there is a deep state, by which I mean some implicit unspoken mutual love of this country and its Constitution, some baseline mutual understanding of how close we now are to a dictatorship, the to the suspension of elections, to the expulsion of Muslims, to the arrest of journalists, etc. If you think I am joking or exaggerating, just print out the President’s pronouncements on these subjects and his periodic suggestions that he would like to have dictatorial powers. What other President has ever said that?
The last guardrail we have is the US Senate. But if the Senate votes not to evict President Trump, then nothing can remove him from office, and it is not clear that he will leave quietly even if he is not re-elected in November 2020. What if he decides the 2020 election was rigged and he declares martial law for the good of the country? What if he suspends the 2020 election?
I know you think I am over-reacting. But I have spent my life thinking about these things and I am generally cheerful. Generally speaking, I think we will always lurch on in spite of everything, and that we will weather the political storms that come at us with increasing frequency. But I am now openly and at times sleeplessly afraid for my country.
My friends, I address you with the deepest seriousness of anything I have said or written on the Thomas Jefferson Hour. We are on the brink of national constitutional collapse. Carl Bernstein has said for about 18 months that we are living through a cold civil war. I have thought he was right, but of course I have wondered if he and I are over-reacting, over-dramatizing, over-worrying. But we are not exaggerating. We are indeed in a cold civil war and I want to tell you that I think it is going to flare up into a hot civil war in some parts of this country as things reach absolute impasse sometime in the next few months.
One argument being advanced by administration defenders is that while the President’s attempt to pressure the Ukrainians to dig up or manufacture dirt on Mr. Trump’s political opponent is bad, very bad, it does not rise to the level of impeachment, that impeachment is too grave for this instance of abuse of power. First of all, I disagree. The Smoking Gun in Nixon’s “long train of abuses and usurpations,” as Mr. Jefferson puts it, was the audio tape in which the president instructed his chief of staff to pressure the CIA to pressure the FBI to drop the Watergate investigation on the grounds that it would jeopardize national security. That was enough to remove Richard Nixon. Here we have a President pressuring a foreign head of state to “investigate” (I use air quotes) his chief political rival, while coyly, really not so coyly, holding back $391 million in urgently needed military aid. This seems equally bad or perhaps worse than the June 23, 1972, smoking gun tape. Second, I ask you to think about the idea of impeachment. If this is not an impeachable offense—pressuring a foreign sovereign to discredit a political rival so that re-election will be easier—then what is an impeachable offense? What would it take? What would President Trump have to do to deserve impeachment if trying to disrupt the American principle of free and fair elections does not qualify?
And yet, President Trump knows that he has one fabulous asset in this crisis. Out beyond the beltway is an angry army of well-armed, street-smart citizens who believe he is the answer, that Donald Trump is the last chance to save America, and that any attempt to remove him is nothing more or less than a deep state conspiracy to void free and fair elections. Mr. Trump has a private army of about 40 million people out there, some of them my friends, 10 million true believers I’d say and 30 million who are convinced that the American establishment wishes to remove a duly-elected President by way of a legal-seeming coup.
The question is whether we can restore some health to the system before the army of the outraged explodes in violence. The pressure is on the United States Senate. Even the Republicans who want to do the right thing are scared to cast that vote. And yet they must know that they are all that stands between us and a kind of tyranny. It may be a farcical and inept tyranny, but it will be a tyranny nevertheless.
It is possible that we are going to make a little foray into fascism. I don’t think we will remain there long, but remember that the minute Mussolini got actual power he used it to shut down all the democratic (or other) institutions of Italy and create a police state instead.
I know we think it cannot happen here. I know we think that Donald Trump’s wild statements about authoritarianism are just a sloppy form of rhetorical excess, a kind of parody of authoritarianism (beating and locking up journalists, calling journalists enemies of the state, vowing to lock up political opponents, saying a member of the House of Representatives has committed treason, suggesting that we shoot illegal immigrants at our borders in the legs, threatening to expel Muslims including Muslim Americans, saying that he will overturn the fourteenth amendment, i.e, birthright citizenship, by executive order). This may all just be bombastic language. But what if the Senate removes the last guardrail—legal eviction—and the President realizes that there is no further check on his behavior?
I’m asking you to think about this and to have a dinner party where you discuss it. In fact, I wish you would discuss this essay line by line and decide where I may have a point and where I am full of beans. Whatever else is going on in your lives, I ask you to turn your attention to this constitutional crisis, read the Federalist Papers especially #s 65 and 66, and ask yourself what this President would do if there were no check on his impulses and his actions.
I’m Clay Jenkinson and I’m terrified.
Dr. Lindsay Chervinsky and Clay Jenkinson discuss the Fourteenth Amendment to the United States Constitution.