The Situation: No Recriminations, Just Democratic Survival

The Situation begins today.

I have no interest in recriminations. 

I refuse to blame Kamala Harris, who ran a strong campaign organized around reasonable themes under difficult circumstances.

I refuse to blame Ann Selzer, for being wrong, or the many pollsters who “herded” around what turned out to be reality, or Nate Silver, whose “gut” was correct.

I refuse to blame the “media”—whatever that may be. 

I’m not going to spend a moment blaming Merrick Garland. 

I see no point even in blaming the Electoral College, since Donald J. Trump appears to be winning the national popular vote as well. 

I don’t want to be distracted by whose fault any of this may be. 

I want to focus instead, as single-mindedly as humanly possible, on democratic survival over the next four years—and beyond, if necessary.

And to that end, I am personally going to be writing a lot less about Trump’s crimes. It is tempting, always, to think about democracy protection through the lens of Trump’s lawlessness. We tend sometimes to equate democracy with the rule of law, after all, though they are not quite the same thing. And we thus also have a tendency when we think about Trump to leap to his illegalities, which are legion—whether the obstructions of justice, the sexual assaults, the election interferences, the hoarding of classified information, or the attempt to overturn the election that he lost. 

Trump’s second term will, I have no doubt, partake of more than its share of lawlessness. As he is Trump, there will be crimes. As he is Trump, there will be self-dealing. And as he is Trump, there will be a party apparatus devoted to looking the other way, to whatabouting, and to denying reality. And I do not propose to ignore any of this, by any means. 

Yet in contemplating the dangers of the second Trump term, the damage he can do with perfect legality actually looms more ominously than his ultimately inevitable criminality. This may seem like a weird retreat given the obsessive attention I have personally given to Trump’s trials and the investigations of them—and given the degree to which the Supreme Court has immunized presidential action in its recent decision. But the simple truth is that if we are going to protect democracy, the actions of the state matter more than the criminal actions of the man. 

They can also, precisely because they involve the president’s legitimate powers, be a great deal harder to do anything about. 

Let’s start with policy Trump can implement on his own. A skeptic might dismiss some of this merely as implementing policy choices with which Trump’s critics disagree. And as a matter of democratic theory, I might even agree with that skeptic. 

For example, Trump learned the first time around that he cannot build a border wall and make Mexico pay for it with the stroke of a presidential pen. He can, by contrast, order mass deportations as a matter of presidential policy and he will be limited more by state capacity than legal authority. He can order a great deal more interior enforcement of immigration law and a great deal more detention of those who are out of status while their cases are pending. He can reinstate the restrictive immigration policies he had in place before he left office. And he can limit refugee, asylum, and temporary protective status for any number of people currently here or seeking shelter in the United States. All of these actions will face court challenges and might be limited by the courts to one degree or another. But he can do a whole heck of a lot on his own; the president’s lawful powers here are vast. He can, in fact, radically reshape the environment for migrants inside or seeking to come into this country, locking up a whole lot of people along the way. 

Whether one sees such actions as expressions of democracy, insofar as people voted for Trump—who was nothing if not candid about his plans in this area—or democracy-destructive attacks on vulnerable communities, they are hugely consequential for the liberty of literally millions of people. 

But in some areas, what Trump can do—and promises to do—using the presidency’s lawful powers are more frankly anti-democratic. I’m not sure exactly how much damage Trump can do to the civil service using an instrument like “Schedule F,” or how likely his efforts are to get tied up in the courts. But I have no doubt that he can make life extremely unpleasant for career officials who don’t want to toe the line. Indeed, only last night, two such people got in touch with me thinking about their exit strategies. Trump will not have to violate the law to do lasting damage to the federal bureaucracy, and he will do it both with administrative measures like Schedule F and also by other means. Last time around, after all, he made individual career officials famous—and endangered their lives—with tweets and speeches and the like. 

And there’s a policy element here too. Would you want to be a vaccine specialist working under the watchful eye of Robert F. Kennedy Jr.?

And then there are the places where the lawful powers of the presidency and Trump’s self-dealing, criminal instincts crash into one another. Trump has been, once again, admirably candid about his plans to pardon the Jan. 6 insurrectionists. When he tries to do it, you will hear a bunch of arguments that there are limits on his ability to do so. Don’t believe a word of it. The president can pardon any or all of the Jan. 6 defendants as he may choose—and he can pardon his co-defendants in the classified documents case too. He has, to lay the matter bare, powerful incentive to do both.

If you want people to riot on your behalf when you lose an election, after all, it pays to take care of them after the fact. Ditto valets and employees you want to obstruct justice for you. Indeed, Trump has been remarkably consistent about pardoning people who commit crimes for him and don’t then flip on him. In doing so, he sends a powerful message to people in the future that staying loyal to him pays dividends. You never know when you’re going to need another riot or another person at your golf club to cover up your crimes.

The matter of getting rid of his own criminal cases is a little more complicated—but only a little bit. The Constitution does not, unfortunately for Trump, give the president direct power to dismiss cases against himself. Nor does it explicitly give him the power to pardon himself, though the language of the pardon power is broad enough to encompass the possibility before a friendly court. To get his two federal cases dismissed, Trump will have to appoint a pliable attorney general, who will have to get confirmed and then move the relevant courts for dismissal. In the alternative, I suppose, he could appoint an acting attorney general, for whom confirmation would not be necessary, and have that person do the dirty deed. One way or another, the deed will get done. And when it does, it won’t have been unlawful.

This brings me to another power that Trump has the lawful ability to wield with infinite democratic recklessness or malice: the power to appoint officials. We saw this problem in spades in the first Trump administration. And it has become something of a commonplace that a second Trump administration will be worse. Trump, after all, does not have access to the A team, or the B or C teams. He has access to a group of true believers and grifters, some of them deeply cynical and some fanatical. In some situations, the Senate may withhold confirmation, though a Republican Senate likely won’t do that very often. And Trump has, in any event, the ability to place such people in positions of power either on an acting basis or as powers behind the various agency thrones.

In the case of many agencies, this will merely yield bad policy, incompetence, or corruption. In the national security agencies, it can produce a lot worse than that. Prosecutors and investigators can focus on political opponents—as Trump has promised. Truly crazy things can happen at the Department of Defense, as did happen in the waning days of the first Trump administration. 

All of which leads us to the most important area that a malicious president has the most capacity to do damage to democracy without violating the law: foreign policy. If Trump wants to sell out Ukraine or any other European democracy to Vladimir Putin—and I think he genuinely does—he need not violate any law to do so. If he wants to let China take over Taiwan, no law stops him. If he wants to destroy NATO and other critical U.S. alliances—and I think he genuinely does—no law will prevent this either. Whatever the formalities may be of the president’s power to withdraw from treaties, these alliances are built on confidence in the United States. And that is something no law can prevent a president from wrecking. 

All of which is not to suggest that Trump’s crimes, past and future, don’t matter or that one shouldn’t pay attention to them. They do matter. One should pay attention to them. And I mean to. It is, rather, to say that over the course of the next four years, Trump’s lawful predations on democracy—at home and abroad—will be at least as menacing as his criminal ones. They will happen faster. They will be less inhibited by staff reticence and fear of prosecution. And they will often present as legitimate policy proposals, as—in fact—some of them will be. There is, after all, no rule that says America must admit migrants, support other democracies, or not create impunity for favored criminals. 

What are we to do about the lawful democratic assaults? There is no simple answer to this question—only the vaguest of guideposts. But I will offer a few of those guideposts. 

First, litigation is an important instrument. Justice delayed is justice denied, goes the old saying, and the same is true of injustice. Tying things up in court doesn’t always make them stop. But it often ameliorates them, and the delays themselves can be salutary. A good example of this is the Trump travel ban, which went through three different iterations—each milder than the previous one—as a result of litigation. Along the way, injunctions helped a lot of people. Forcing the administration to dot every “i” and cross every “t” before it implements horrible policy may not involve ultimately winning a case; Trump ultimately won the travel ban litigation in the Supreme Court. But delay and amendment can be goods in and of themselves. 

Second, litigation is an insufficient instrument and is emphatically not a substitute for politics. In the end, the fundamental problem here is that more than half of American voters asked for what they are now going to get. Somehow, those of us who see this decision as a profound blow to a democratic system need to persuade others of that. That means arguing each and every one of the lawful predations in the public sphere, engaging seriously with the arguments on the other side, and somehow reaching people and moving them. 

Third, every one of these lawful predations is different and will require a different strategy. A bad nominee to head the Department of Homeland Security is not the same as a corrupt pardon. An executive order implementing Schedule F is not the same as an investigation of a political opponent motivated by animus. And none of these are the same as a tax break to wealthy people passed through a Congress whose Republican majority loves to pass tax breaks for wealthy people and would do it with any Republican president. Keeping separate policy matters that don’t threaten democratic life from actions that do, and being clear when the lines are genuinely blurry, is essential to credibly defending democracy in the second Trump term. 

One final note: There is no single marker of success here. There’s no simple test I can articulate that will tell us we have succeeded. Democracy and the rule of law are not binaries, light switches that get turned on or off. They are more like dimmer switches, which can be turned up or down. The goal here is not to let the dimmer be turned down too low, to not let the light go out, to fight for every lumen, and to do it honestly and with a constant awareness that not all democratic values run in the same direction. And one critical democratic value we always have to keep in mind is that the people should get the leadership they vote for. 

And for reasons I will never understand, in a free and fair election, the people voted for this. 

The Situation continues tomorrow.