Goldsmith on Trump’s Destruction of Presidential Norms

Jack Goldsmith, the former head of the DOJ’s Office of Legal Counsel who famously rescinded the torture memos, writes that while the Constitutional limits on executive power are mostly holding, Trump is destroying many important presidential norms that are necessary for maintaining separation of powers.

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Donald trump is testing the institution of the presidency unlike any of his 43 predecessors. We have never had a president so ill-informed about the nature of his office, so openly mendacious, so self-destructive, or so brazen in his abusive attacks on the courts, the press, Congress (including members of his own party), and even senior officials within his own administration. Trump is a Frankenstein’s monster of past presidents’ worst attributes: Andrew Jackson’s rage; Millard Fillmore’s bigotry; James Buchanan’s incompetence and spite; Theodore Roosevelt’s self-aggrandizement; Richard Nixon’s paranoia, insecurity, and indifference to law; and Bill Clinton’s lack of self-control and reflexive dishonesty.

“Enlightened statesmen will not always be at the helm,” James Madison wrote in one of the Federalist Papers during the debates over the ratification of the Constitution. He was right, but he never could have imagined Donald Trump.

At this point in the singular Trump presidency, we can begin to assess its impact on American democracy. The news thus far is not all bad. The Constitution’s checks and balances have largely stopped Trump from breaking the law. And while he has hurt his own administration, his successors likely won’t repeat his self-destructive antics. The prognosis for the rest of our democratic culture is grimmer, however. Trump’s bizarre behavior has coarsened politics and induced harmful norm-breaking by the institutions he has attacked. These changes will be harder to undo…

This was the background to the near-hysterical worries when Trump became president. During the campaign, he pledged to act in illegal ways; expressed illiberal attitudes toward freedom of speech, religion, and the press; attacked immigrants and minorities; tolerated, and even incited, thuggery at his rallies. The man who on January 20, 2017, took a constitutional oath to “preserve, protect, and defend the Constitution of the United States” seemed disdainful of the rule of law and almost certain to abuse his power. “He is unlikely to be contained by norms and customs, or even by laws and the Constitution,” wrote Peter Wehner, a circumspect Republican commentator, in The New York Times the day after Trump’s inauguration. Wehner captured, in an understated way, prevalent fears about Trump’s presidency…

rump has been less constrained by norms, the nonlegal principles of appropriate behavior that presidents and other officials tacitly accept and that typically structure their actions. Norms, not laws, create the expectation that a president will take regular intelligence briefings, pay public respect to our allies, and not fire the FBI director for declining to pledge his loyalty. There is no canonical list of presidential norms. They are rarely noticed until they are violated.

Donald Trump is a norm-busting president without parallel in American history. He has told scores of easily disprovable public lies; he has shifted back and forth and back again on his policies, often contradicting Cabinet officials along the way; he has attacked the courts, the press, his predecessor, his former electoral opponent, members of his party, the intelligence community, and even his own attorney general; he has failed to release his tax returns or to fill senior political positions in many agencies; he has shown indifference to ethics concerns; he has regularly interjected a self-regarding political element into apolitical events; he has monetized the presidency by linking it to his personal business interests; and he has engaged in cruel public behavior. The list goes on and on.

He’s right that, so far at least, the courts, the press and other institutions have managed to keep him from wholesale violations of the Constitution. He’s also right that, from the standpoint of the kind of normative behavior we expect from presidents, we’ve never seen anything like Trump. Even Nixon was not in his league when it comes to paranoia and abuse of power, or in attacking his perceived enemies. And we’ve never had a president lie so often and so brazenly, about practically everything.

The biggest question, for me, is whether this is an anomaly or the new normal. Will Republican candidates try to replicate him in future presidential elections? Or will we look back in 20 years and see this as just a weird episode brought on by the confluence of a bunch of unusual circumstances? If it’s the new normal, this country is in very serious trouble, enough that I doubt the union will survive.

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