Jurisprudence

Trump Pushing the Firing of Andrew McCabe Was a Direct Challenge to Our Democracy

Photo illustration: side-by-side of Attorney General Jeff Sessions and President Donald Trump.
Attorney General Jeff Sessions; President Donald Trump.
Photo illustration by Slate. Photos by Mandel Ngan/AFP/Getty Images.

Even the most temperate advocates of law and order should be up in arms over the vindictive firing of the former FBI deputy director, Andrew McCabe, on Friday. The president’s grotesque touchdown dance tweets over the weekend and his lawyer’s similarly grotesque calls to fire special counsel Robert Mueller only emphasized the ugliness of the act. The far more chilling spectacle, however, was the predictable reaction from the president’s various Republican lapdogs in Congress. With just a handful of notable exceptions—Sens. Jeff Flake, Lindsey Graham, and John McCain, and if you closed one eye and squinted super hard, House Speaker Paul Ryan—congressional Republicans faced the news that the president and his lawyer are again directly targeting federal law enforcement with a stretch, a ritual licking of the privates, and a resumption of regularly scheduled napping positions.

It is now clear that Trump is launching these ever-more direct attacks on the legal and intelligence apparatus as trial balloons to get a sense of just how far he can stretch our constitutional democracy before it breaks. Each time Republicans in Congress yawn and scratch, he understands that he can go further. Promises that some committee should probably someday look into some things do not truly register as congressional oversight.

It is also plain that the people who have persuaded themselves that they’re staying on to check the president’s worst impulses and protect what’s left of constitutional democracy are kidding themselves. If the Trump administration exits of the past few weeks have revealed anything, it’s that you can defy President Trump and be fired, or stay and pander to President Trump and also be fired. Who you are and what you do is immaterial. Nobody is really acting as a brake or a check on this president: Everyone’s simply enabling him until they are no longer useful.

This is, of course, the point. Nobody but Trump matters. Nobody’s motive, character, or best instincts are relevant. The entire administration is just a sad heaving mass of interchangeable instrumental parts. Rex Tillerson was eviscerating the foreign service as requested, but he still wasn’t doing what his boss needed. Just as Trump regularly tests the loyalty of his underlings to see who will lie for him, he also tests them by seeing who will fire their own underlings for him.

The result, in the aggregate, isn’t a crack team of sober adults moderating a dangerously unpredictable president. It’s a crack team of desperate sycophants rendering themselves ever more fungible and fireable.

So, to review: supine Congress and supine executive branch? Check. No acknowledgment of what a “break the glass” moment would look like and no adults in the room? Check.

Cue the talk of a rolling constitutional crisis with no clear beginning and no definable end. FiveThirtyEight helpfully provided a primer on constitutional crises last year, in which it outlined four possible working definitions of the term. The fourth variant—a crisis in which the institutions of government fail to perform their checking functions, or are deadlocked in efforts to exert control—is likely the crisis we are bracing for (or perhaps already mired in).

In the Atlantic, Quinta Jurecic and Benjamin Wittes offer a clarifying assessment of whether we are in the midst of a constitutional crisis, starting with this caution:

The term ‘constitutional crisis’ gets thrown around a lot, but it actually has no fixed meaning. It’s not a legal term of art, though lawyers and law professors—as well as political scientists and journalists—sometimes use is as though it were. Saying that something is a constitutional crisis is a little like saying that someone is going through a ‘nervous breakdown’—a term which does not map neatly onto any specific clinical condition, but is evocative of a certain constellation of mental health emergencies.

Wittes and Jurecic point to the definition of the political scientist Keith Whittington, who posits that the term constitutional crisis should mean “circumstances in which the constitutional order itself is failing.” Whittington suggests that, for instance, if Mueller were to be fired and congressional Republicans failed to react, we would be in what he calls a “crisis of fidelity,” in which the constitutional rules tell us what to do but aren’t being followed.

As the authors are quick to point out, however, even this definition is not entirely helpful when there has been daily corrosion of constitutional norms without it being felt in our daily lives. Moreover, while “constitutional crisis” may be an apt description of a problem, there is no mechanism for extracting ourselves without public action. Much like a “nervous breakdown,” there is no prescribed cure.

Wittes and Jurecic also cite constitutional scholar John Finn and Yale Law professor Jack Balkin for another apt term for what we are actually undergoing, which they term “constitutional rot.” The rot they depict is a glacial, often undetectable erosion of legal and constitutional norms that leaves the shells of democracy in place, as their cores are hollowed out. Constitutional crises arrive with sirens and flashing lights. Constitutional rot eats out the floorboards as we watch basketball upstairs.

As both authors note, there is room for optimism: constitutional rot is being zealously battled by a newly activated citizenry, a robust and dedicated press, and by institutions—such as the FBI—that refuse to buckle under the president’s assaults on the rule of law. I’d add the courts, which have pretty consistently turned back or delayed Trump’s worst initiatives, the kid-superheroes of Parkland, and the faith communities and legal entities that continue to fight for the norms of good government.

As I’ve suggested before, the real problem with the term constitutional crisis is that it suggests that lawyers or Congress are best situated to fix things. Similarly, the one problem with the notion of “constitutional rot” is the implication that a good plumber, or your uncle’s tree guy, can get in under the floorboards and clear it up. But as Wittes and Jurecic correctly caution, we are the plumber and we are the tree guy.

Whether this current constitutional moment proves to be a crisis, or rot, or just a fleeting constitutional bad tooth isn’t entirely knowable yet. The Framers would probably tell us that waiting around for history to figure out the answer and give it some legal language isn’t the way to respond. Maybe let’s just agree to name the thing later, and squelch it right now.