Whatever happens with impeachment, if the Democrats do not make a hash of the elections, in less than a year Donald Trump will depart from the White House for good. Can things snap back to normal? Will Trump’s presidency be seen as an unfortunate aberration, or will the chaos, the lying, and the depravity continue? No question is more important for the future of American democracy. One place to look for answers is in the nature of the presidency itself. Has Trump’s unique brand of politics altered the institution in irreversible ways?
A new book, Unmaking the Presidency by Benjamin Wittes and Susan Hennessey, is an excellent starting point for any such inquiry. Wittes is the author of several previous well-received books about American government and a founder of the indispensable Lawfare blog (where I have been an occasional contributor). Hennessey, a top editor at Lawfare and a senior fellow at the Brookings Institution, is a former National Security Agency attorney. In their book they place Trump in historical context and examine the changes he has wrought.
They note at the outset that the American presidency has never been a static institution. Over the course of two-plus centuries, it has evolved along several dimensions, including its size and organization and its relationship with the other branches of government as well as the public. With a rich history behind it, Trump came into office seemingly bound by a dense web of traditions and expectations about what a presidency should look like. The most striking thing about him, in Wittes and Hennessey’s view, is how thoroughly he has cast aside those traditions and expectations and created a truly novel conception of the office:
Trump proposes a presidency that elevates the expressive and personal dimensions of the office above everything else. It is one in which the institutional office and the personality of its occupant are almost entirely merged—merged in their interests, in their impulses, in their finances, and in their public character.
With this basic observation as their launching pad, Wittes and Hennessey examine various aspects of Trump’s presidency, surveying his treatment of major thematic realms like ethics, rhetoric, and national security, with additional stops along the way to take up the Russia investigation and the ongoing impeachment saga. One such stop is the paradox of the “non-unitary executive,” which might also be filed under the label of the surprising weakness of an aspiring strongman.
Under our traditional understanding of the constitutional order, the president sits at the apex of the executive branch and appoints subordinate officials to carry out his will. These subordinates serve at the pleasure of the presidency and do his bidding or risk the axe. But under Trump, this unified top-down system has cracked. Subordinates regularly contradict the president or, conversely, the president regularly contradicts his subordinates.
Thus, the intelligence community says that Russia interfered in the 2016 election. Trump denies it and insists it was Ukraine. Trump claims he was surveilled by Barack Obama in Trump Tower. The FBI says nonsense: Nothing of the sort ever happened. Unmaking the Presidency offers a multitude of similar instances, including some in which bewildered White House staffers are compelled to scramble to reconcile established policy with Trumpian tweets. Among others, a flustered Secretary of State Mike Pompeo has been caught more than once in the middle of these knots. Utterances by the president, Pompeo has insisted, are not the same thing as U.S. policy: “People make lots—I make lots—of statements. They’re not U.S. policy.”
Wittes and Hennessey suggest that this disunited executive branch may only be “temporary,” a feature of Trump’s erratic character, inattention, and sloth:
The executive has fractured only because Trump has let it fracture, because he tolerates a chaotic disunity that other presidents have not and that future presidents can choose not to tolerate. It’s hard to imagine, in fact, future presidents tolerating the kind of insubordination Trump tolerates daily, from which he seems to benefit so little and suffers so much.
But Wittes and Hennessey also hold out the alternative possibility of a future Trump-like repeat in which, in the absence of regular processes, subordinates act autonomously: “[T]he expressive presidency may have staying power and that lessened presidential control over the executive branch is, to one degree or another, an organic feature of the expressive presidency.”
Whatever the future holds, the upside for the moment is clear. The non-unitary executive has frustrated some of Trump’s more outlandish maneuvers. But there is a downside as well that Wittes and Hennessey point out. The disunited executive
risks cultivating habits in the bureaucracy of not doing what it’s told, habits far beyond those that have long made the executive branch a slow ship to turn. The consequences may be a presidency that will be much harder to manage in the future. Trump complains of a “deep state” that operates independently of the president. The slander has a quality of a self-fulfilling prophecy.
One area where the changes wrought by Trump might be particularly long-lasting concerns the administration of justice. The rule of law is one of the most fundamental features of a well-functioning liberal democracy. And in the United States, at least since Watergate, our Department of Justice has been renowned for its deeply ingrained culture of rectitude. Yet, as Wittes and Hennessey point out, the Department has turned out, under Trump, to be the “soft spot, the least tyrant-proof part of the government.”
The Justice Department has institutional defenses against the perversion of justice. There are formal rules, like the Levi Guidelines, that limit when and for what purposes the FBI can open an investigation. But the stronger constraints, at least in the past, have been informal “normative rules” about contacts between the Justice Department and the White House, along with the “behavioral expectations” of officials who have taken an oath of office. Vested with an enormous amount of prosecutorial discretion, the judicial machinery has functioned relatively smoothly in the post-Watergate era. But, as Wittes and Hennessey note, the machinery has an enormous vulnerability: “[A]n important element of our system presupposes a president who is fit to oversee it.”
In Donald Trump that fitness has been absent. The president’s conception of justice, as Wittes and Hennessey observe, is that of Polemarchus in Plato’s Republic, who posits that “justice is helping friends and harming enemies.” Repeatedly, we see this in action. Trump’s complaint, leveled in a tweet, that Attorney General Jeff Sessions was remiss in prosecuting two crooked Republican congressmen is a case of helping friends. His calls for the prosecution or imprisonment of his political adversaries, including both Hillary Clinton and Joe Biden, are notable examples of harming enemies.
Prosecutorial discretion and the informal nature of Justice Department independence have turned out, in Trump’s hands, to be a loaded gun pointed at the rule of law. Write Wittes and Hennessey:
Whether out of candor or—more likely—out of bombastic ignorance, Trump has never made the slightest pretense of respecting his highest prosecutors’ autonomy. The most remarkable feature of his behavior toward law enforcement is how overt it is. Where mid-century presidents struck a pose of virtue in public and quietly tolerated or encouraged abuses, Trump openly calls for abuses. . . . [He] not only merely assaults the specific norm itself; he is openly hostile to the value of nonpartisan and apolitical law enforcement that the norm seeks to protect. Trump’s behavior toward his law enforcement apparatus must count among his gravest breaches of the traditional presidency’s expectations.
To be sure, presidential perversions of justice are not unique to Donald Trump. Unmaking the Presidency walks us through the long history of abuses going back all the way to the actions of John Adams in prosecuting the editor of the Aurora under the Sedition Act of 1798. And Trump, they readily acknowledge, has not fully succeeded in corrupting the institutions under his control. Though damage has been done, careers ruined, morale undermined, a culture tarnished, to some important degree his lawless vision remains aspirational rather than realized.
But in one ominous respect he has succeeded wildly: his “simple demonstration of the idea that a president can involve himself in specific law enforcement decisions and not face immediate and catastrophic political consequences.” This is a demonstration that his successors will remember.
Wittes and Hennessey conclude their book on a pessimistic note. Trump may be a uniquely nefarious character but he is also the product of intense polarization “that will not go away just because he leaves the scene.” There is reason to worry, they continue, “that the damage Trump has inflicted on the office and its institutions is greater than it will appear on the day he leaves office.” This is not because Trump has succeeded in irreparably corrupting everything he touches but rather stems from his “thinking the unthinkable and [then] speaking it out loud.” The lesson a successor might learn is not never to do such things but rather “do them a little more quietly.” A smarter, defter version of Trump could prove to be the undoing of American democracy.
With impeachment hanging in the balance, it is impossible to make a confident assessment of which depredations wrought by the Trump presidency will prove to be enduring and which will prove evanescent. But in attempting to think seriously about such questions, Unmaking the Presidency, an admirable combination of historical understanding and subtle thinking, stands out as a singular achievement in the burgeoning literature about this troubled chapter of American life.
Gabriel Schoenfeld, a senior fellow at the Niskanen Center, is an opinion columnist for USA Today and a contributing editor at The American Interest.