Jurisprudence

America’s Descent Into Legal Nihilism

The president would like to be president forever. And he’s bending the law to his will to do so.

Donald Trump arrives at a rally as supporters in red hats take photos of him and cheer.
Donald Trump arrives for a “Keep America Great” campaign rally in Sunrise, Florida, on Tuesday.
Mandel Ngan/Getty Images

It is a Thanksgiving tradition to spend time thinking about what one is thankful for, a healthy practice that reminds us to see the world in a positive light. Gratitude is good for us, and we should not take it for granted. This year, though, I feel compelled to spend at least a bit of time focusing not only on what I am thankful for, but on what I am freaking out about. And the thing that concerns me greatly these days is simple: The president seems to have no intention of leaving office, and we seem to have no meaningful plan to address that.

It’s not just that this president benefited from Russian interference in the 2016 election (and in fact solicited it publicly, recall “Russia, if you’re listening”). It’s not just that he denies—in the face of the incontrovertible conclusions of his own intelligence agencies and the Senate Intelligence Committee—that Russia played any part in his 2016 electoral victory. It’s that he still believes a demonstrable fraud about illegal voting, and Ukrainian election interference, and deep state plots to oust him, and has demanded his Cabinet officers repeat it. Moreover, he has demanded that his attorney general investigate it. His insistence that everyone around him participate in his version of reality allows him to repeat the material falsehood that he won by a landslide in 2016, and that there will be more attempts to suppress his victory in 2020.

The president has also taken the legal position that he cannot be indicted while in office; a position rooted in a memorandum that originated in the Office of Legal Counsel in 1973, and was reaffirmed in 2000, that may or may not be correct, as legal experts are thoroughly conflicted. Trump and his Justice Department have extrapolated from that memorandum that he also cannot even be investigated while in office. In court proceedings defending that unprecedented position, his attorney has in fact stated that even if he shot someone on Fifth Avenue while in office, he could not be subject to criminal processes, because he is the president and presidents are immune from such things even if they themselves commit murder. Under this untested legal theory, the president is incapable of criminal conduct, and his lawyers, and even some of his recently seated judges, when pressed, claim that the only proper channel through which to investigate a president’s criminal conduct would be via impeachment.

Happily, an impeachment process has begun, which is, in its way, something to be thankful for. And yet the Trump White House refuses to participate, insisting that the entire process is unconstitutional. Not only does the president claim that the investigation is impermissible, but he has also issued a blanket refusal for anyone in his administration, or who has ever been in his administration, to cooperate with the impeachment inquiry. Even as a federal judge rejected that position outright on Monday evening, former White House counsel Don McGahn, joined by the Department of Justice, has appealed that ruling, which might have unblocked the obstruction of several vital impeachment witnesses. John Bolton, who is very busy tweeting and pitching a book, will also decline to testify, although the district court order expressly rejects his reasoning. Bolton’s refusal to testify, even when offered the cover of a judicial order, meaning that he could claim to testify reluctantly, and even if testifying in an impeachment inquiry could conceivably mean nothing more than refusing to answer every single question under claims of executive privilege, suggests that the White House’s efforts to stymie the only means of investigating a president that it says it would permit will prevail.

The growing hysteria about imaginary past Ukrainian election interference, a ludicrous impeachment defense, will be used to deflect from the emphatically certain future Russian election interference (as well as interference from other nations that reasonably want in on the fun). The Mitch McConnell–dominated Senate has declined to do anything to protect against that certainty and instead is building a judiciary that will permit it. Please consider, as well, that the geniuses among us who claim that we should ignore Trump’s effort to conscript Ukraine into working on his 2020 presidential run, and just defeat him roundly at the polls, are forgetting that Donald Trump’s entire raison d’être, his past and future destiny, is to manipulate presidential elections in ways that preclude his round defeat at the polls. That is why he worked—as we now know—with Roger Stone to distort the outcome of the 2016 elections; it is also why he withheld almost $400 million in appropriated aid to Ukraine this summer. Insisting that we will let the voters decide this matter in a free and fair election in 2020 has to be the Lucy-football-est move ever, in a three-year festival of Lucy-footballing.

There’s more. Donald Trump does not necessarily intend to leave office even if he loses the 2020 presidential election. He jokes about it constantly. He never agreed that he would concede if he lost to Hillary Clinton in 2016, remember. His claims about election and voter fraud are not just ego food about his popular vote numbers in 2016, but also setup for 2020. The anonymous author of a new Trump book says as much. It’s taken a long time to even consider this possibility openly. And just as we soothed ourselves that the military would be the keystone to his removal if it came right down to that, the president has redefined the U.S. military as an appendage of his own desires. At his Florida rally on Tuesday night, Trump dismissed any resistance to his actions in pardoning service members accused of war crimes as emanating from “the deep state.” He reportedly wants these new military heroes he is elevating to join him on the campaign trail. And just as he has falsely dismissed honorable career professionals in the foreign service as “deep staters” and “Never Trumpers,” he will now refuse to hear from anyone in the military who argues for internal honor codes and discipline as the same.

Don McGahn thinks someone else is responsible for taking care of all this, as, evidently, does John Bolton. Robert Mueller made the same mistake in the spring, when he decided it was Congress’ responsibility to act on what he had found. And so, to be frank, did most of the impeachment witnesses, many of whom only came forward to corroborate the whistleblower’s anonymous report, and some of whom only came forward pursuant to a subpoena. Everyone seems to assume vast quantities of courage in other people that they cannot seem to find in themselves. Yet somehow, our greatest worry in the coming days will be how to remain civil with one another over a large bird and its cute little cranberry accessories. The president believes that he is above the law and has foreclosed any attempt to prove otherwise. The president seems unable to conceive of himself losing an election. The president is counting on all of us to merely hope that something somewhere gets done about all this stuff at some point, but to never actually do anything ourselves beyond passing the stuffing around. This year, what I am most thankful for is the people who are trying to do that something themselves.