Note: I’ll be out of town between the 4th and the 15th, in a wilderness repast, with little to absolutely zero connection to the internet or my phone. Posts during this time, written in advance, will be bigger-picture, or more idiosyncratic, rather than directly pegged to the news. If events happen that supersede or negate anything I say, think of these as a more innocent time capsule. Try not to let the country burn down while I’m gone.
One of the phrases that you hear most often when people talk about the possibility of Donald Trump, that calamitous baby, that reject from a frat house treasurer race, is “constitutional crisis.” The idea behind the threat is that our system, with its checks and balances, and respect for the rule of law, can’t handle such a dingbat authoritarian, someone guided entirely by his fascistic whims. This has been argued in many ways, by the ACLU, by the New York Times, and many others.
The argument about him provoking this crisis isn’t just about his repellent personality, of course, but about the ways in which that personality manifest itself. His “plans”, which are really just the knee-jerk impulses of a dimwit child, include expanding libel laws to crush opposition press, rounding up illegal immigrants, building enormous walls, and reestablishing our immigration policy to discriminate explicitly on the basis of faith.
All of these go against the basic idea of the rule of law, but the argument isn’t always legal. Certainly, lawyers like in the Times and the ACLU make perfectly convincing arguments that his ideas are so blatantly illegal that they will set up the Executive Branch in a state of open warfare with the Judicial Branch, with the Legislative in between, either facilitating his madness or trying tentatively to stop it. It will force us to see how powerful we’ve made the Executive, if a President can truly ride roughshod over anyone in his way. It will be a literal test of the power of the Constitution, to see if it the institutions are strong enough to resist the phony populist strongman.
But like I said, not all of the arguments are legal in nature. There is also the general feeling that a President so contemptuous of others, so willing to use his bully pulpit to attack anyone who criticizes him, from an election opponent to the family of a fallen soldier to yahoos on Twitter will create an atmosphere of poison that can lead to riots in the street. The hatred he’ll unleash will have a backlash, and then a backlash after that. His followers, well-armed, won’t fear taking rough justice into their own hands, and he’ll do what he can to crush anyone in his way, because that’s what he always does, and now he has the military behind him.
The end of that, to me, is the heart of the Constitutional crisis, and shows how ultimately fragile our democracy can be. It seems likely that, at some point, Trump will order the military to do something blatantly illegal, whether against foreign or domestic opponents. He has already pledged to:
- Kill civilian family member of ISIS soldiers just for retaliation or to send a message.
- Torture for information, but also just for punishment.
- Insist that the military would follow his orders, even if illegal, because he’s the boss.
Now, on the last one, he reversed course, saying that he meant he’d have the laws changed. Of course, that’s absurd on the face of it, because we aren’t going to pass any laws that state it is ok to torture people, even in Trump’s America. He also later said he never said he’d bomb family members, but that was a lie. And that’s the point: he never means what he says, so the reversal of course on ordering the military to torture can’t be believed.
Everything we know about Donald Trump is that he’s a thoughtless megalomaniac whose only concern is the dimmest definition of “respect”; that is, subservience to him. There is no doubt that given the Constitutional power to use the military as he sees fit, he will order them to do something blatantly illegal. And that’s where the true Constitutional crisis will come in.
After all, he’s the Commander-in-Chief. The heart, the single genius of the American foundation, is the role of the military. It is subservient to the civilian powers. That’s genius. It means that generals can’t come in with their private armies. It is loyal to the country, and not any one person. Washington resigned his position, and the military belonged to the US. Eisenhower did the same, saying that the US did not need a general in charge. When Truman fired McArthur, McArthur didn’t raise an army to overthrow him. The thought of it was absurd. That’s what has made American democracy so resilient. The military sees themselves as under the Constitutional order, and not in charge of it.
That’s far different that what we see in Turkey. For decades, after Ataturk remade the country, the military saw themselves as the guarantor of secular democracy, as the final say in Kemalism. When they felt that a President was getting too authoritarian, or too Islamic, or just going in the wrong direction, they would step in and remove him, either softly or forcefully. It happened several times. It happened most notably last month, when a brigade of mid-level generals and soldiers thought that enough was enough with the strongman tactics of Erdogan. They did what the military was “supposed” to do, which was step in and bring back democracy.
That is a crisis. I happen to find the stance of the Turkish military admirable, in theory if not in practice. That Erdogan’s peace overtures with the Kurds was a major influence complicates things, of course, but it was already complex: part of the Kemalist guarantee was Turkish national chauvinism. The good came with a lot of bad.
We’ve never had that here, partly because while we’ve had our fair share of Nixons (and one is a “fair share” for anyone, even for a country which practiced slavery). But we’ve never had someone who systematically took out opponents, rewrote press laws, fired any judge who disagreed with him, and more. (See Nixon not doing all those things even during Watergate). We’ve had people use the FBI is cruel and illegal ways (See Nixon and Johnson). But there has never been an American Erdogan. And most importantly, the military hasn’t felt that there were orders that, to follow, would be a betrayal of the Constitutional order they upheld. (The CIA is a different story, of course, but that’s the point: it’s a different story.)
So image this: Trump orders the military directly to bomb a daycare because the wife and infant son of an ISIS leader is there. Or he insists that soldiers behead one captive just to show that “Trump means business.” He tries to force generals to bring back the rack or the Iron Maiden. He insists the army occupy the Washington Post because they published a bad poll. Is any of this outlandish to you? Is there anything here you can’t at least partially imagine?
What then? Unlike in Turkey, the armed forces here take pride in the fact that they don’t need to guarantee democracy through domestic force; indeed, the fact that they don’t is why our democracy works as well as it does. But if an order is illegal, and insanely so, what then? Do they refuse the order and go against the basis of their existence? Do they do something illegal, which is also a betrayal of their values, because then it means that the military isn’t loyal to the US, but just its temporary and titular head? What happens? Which betrayal is worse? And at what point do they enact the ultimate betrayal in the name of the country: that is, a legitimate overthrowing of civilian power?
I loathed George W. Bush, but it would never have come to this, even with all the illegal stuff he did. It was quantitatively different. These were war crimes in the normal contour of a war. That’s not an excuse, and I think he should be in prison. But he didn’t have a chance at legitmately provoking the armed forces into making such a cruel and unprecedent decision.
The crisis can come because Donald Trump is a fascist, and think he can and should rule like one. He has no respect for the rule of law, and believes that everything is his toy, and should be used for his greater glory. He feels that civilian control of the military means that they should be loyal to him. That’s not what we are about. The result of this collision is impossible to know. But if he is elected, you can be sure it is coming, and it will be unlike any crisis we’ve faced since the Civil War.