Dahlia Lithwick tries to draw a straight line from Michelle Wolf’s comedy at the White House Correspondent’s Dinner, which every president attends except this one, to the Supreme Court.
And at the Supreme Court, during last week’s oral arguments in the travel ban case, Trump v. Hawaii, we were transported to a bizarre world in which this president was discussed as if he were a normal head of state.
At stake here is the presumption of regularity, the presumption that the president is acting in good faith. Lithwick, and many others in the media, have decided that this president is unworthy of the presumption.
It’s hardly radical to posit that in the year and a half since Donald Trump took office, the press and the courts have been the strongest checks against his campaign of distorting reality and attacking the credibility of fact-based institutions. With the Republicans who control Congress unable and/or unwilling to raise their seat backs enough to do anything of substance, political journalists and judges have, in a deft one-two move, uncovered secrets and lies and halted the worst offenders and offenses in their tracks.
The contention is that an aberrant president must be dealt with by an aberrant media, aberrant law. Aside from the revisions to the tax code, almost nothing has been done by this administration. It’s made offensive noise, but has done essentially nothing different than the one before it. Or the one before that.
This may not be obvious because neither the press nor the courts have been as regular as one would hope, the media bent on destroying an ignorant amoral liar and the courts creating Trumplaw, dodging and weaving precedent to prevent this president from doing what the courts would allow any other. Trump is irregular. So too are the media and courts.
Whether this irregularity is justifiable depends on how badly you hate Trump, how dangerous you view him. The rational connection has long since given way to blind hatred. He may well deserve that hatred, but presidents have been hated before. The difference with this one is that nothing he does is remotely regular. Whether he doesn’t know, or doesn’t care doesn’t matter.
He’s irregular, whether it’s about being truthful or being self-serving or harming people to pander to the worst of our society or just adhering to the basics of law and governance. Hey, elect an ignoramus and get an ignoramus. For those who have no love of Trump but believe we needed disruption, he disrupts.
Special Counsel Robert Mueller remains the Great White Hope to end this aberrant choice of president, who runs his White House as if it’s his personal Mom & Pop grocery store, oblivious to the ways of governance and ethical propriety that constrained presidents in the past. The New York Times published questions that, it contends, Mueller wants to ask Trump.
To name just a few: When and why did you decide to fire James Comey, the F.B.I. director, who was leading the Russia investigation at the time? What did you mean when you told NBC’s Lester Holt that you fired Mr. Comey because “this Russia thing with Trump and Russia is a made-up story”? Did you try to persuade the attorney general, Jeff Sessions, to protect you from the investigation? Did you secretly promise to pardon Michael Flynn, the former national security adviser who has pleaded guilty to lying to federal investigators about his communications with the Russian ambassador?
The questions are notable not because they bear upon Trump “colluding” with Putin or Russia, but using his office to undermine the investigation into collusion. The Times fails to note that the impetus for the investigation appears to have been lost to the secondary effects, and it’s likely they don’t really care. If it serves to harm Trump, so what?
The questions are a reminder of just how aberrant this White House has been. No prior president so openly assaulted the rule of law or undermined the integrity of the law enforcement community.
The key word here is “openly.” It may well be that other presidents were similarly, if not quite as flagrantly, dismissive of law and the integrity of the law enforcement community. But Trump isn’t able to conceal it, whether because he lacks the grasp of law to recognize just how aberrant he is or whether he lacks the facility with words, with thought, to spin his way out of his aberrant conduct. He seems to be working with a very limited vocabulary, and an even more limited ability to control his impulses and maintain a plausibly consistent position. He’s disruptive, but sucks at it.
But my concern about their call to reject this presumption of regularity around Trump isn’t a normative one so much as a descriptive one. They are asking judges to recognize that the president just isn’t normal—that he lies and has others lie on his behalf and that his contempt for regular order precludes them from assuming that he’s acting in good faith. It is the formal, marble-coated echo of the arguments advanced about the White House correspondents’ dinner: Why should members of an institution the president wants to destroy treat him with dignity and decorum?
Sure, Trump is aberrant. It’s one of the things his supporters like best about him and his detractors hate most. But the question remains, should he be treated as normal? Should he be entitled to the presumption of regularity given to every president? Well, every other president, anyway.
The media has made its choice, and will damn him with facts or “their truth” as needed. The courts no doubt see the same lies being spewed on twitter and at rallies, subsequently sanitized in courtrooms and proffered as presidential authority, even though Trump can’t be bothered to create even the appearance of regularity. If he even knows that that looks like.
The experiment of making the guy who best exemplifies the worst of our nature president isn’t going well. But then, the sky hasn’t fallen either. Maybe that’s because he’s been tied up by his own incompetence. Maybe he just never had a plan to do anything beyond getting elected, or cared about anything other than being president, and is now shooting blanks to pretend that living in the White House will earn him the respect he’s never received before because his peers thought him trashy and stupid.
After Trump, there will be another president. If the presumption of regularity is reversed for Trump, will he or she be subject to questions about his mental processes by the other team, the threat of indictment or impeachment for lying or obstruction hanging over his head? Without the presumption of regularity, no one can serve as president.
Should an amoral ignoramus do that to us, it might be his legacy, that the aberrant Trump made the presidency impossible to execute.
Hey, just because everyone, including you, is ignoring what is “going on” is no excuse not to glam the President in his day.
Hold on and go there esteemed one….
P.S. Why refuse the troupe to settle?
While I would normally not let your comment be first, this is a post about aberrations, so it seems fitting.
SHG,
Ms. Lithwick will, I very much hope, be disappointed by the Supreme Court and the lower federal courts, outliers notwithstanding. Her call to reject the presumption of regularity, seen very weirdly through the lens of the WHC dinner, will not be heeded. Example: the last iteration of the “Muslim ban” will likely stand, Justice Kagan’s hypothetical notwithstanding.
If the courts cease to apply the presumption of regularity, the present beneficiary of that presumption notwithstanding, then we really will have a Constitutional crisis. And, by the way, if that happens Jim Acosta will still be a little bitch.
All the best.
RGK
But when the Supremes uphold the ban by 5-4, Greenhouse will calmly explain it’s all Gorsuch’s fault. There’s an excuse for everything.
The power of the office isn’t in the office holder, and hasn’t been at least since a former general was elected. Some smart folks realized that he had the theoretical power to use nuclear weapons. That power couldn’t be held by one person. Since then, the office holder has been a figurehead, more-or-less. Remember Reagan’s war declaration caught on an open mic?
Trump is spectacularly poor at his limited function, but that may be by design. The next office holder may choose to embrace the role. But it seems no one gets the ramifications of a witch hunt or why it’s dangerous to peek behind the presidential curtain. For decades, there has been nearly no push to unmask those that actually run the administration, and for good reason: it makes operation of the administration impossible.
A pen and a phone can still do some damage, even if a Cheeto can’t do much of anything besides step on his own dick.
“A pen and a phone can still do some damage, even if a Cheeto can’t do much of anything besides step on his own dick.”
He still has the nuclear launch codes.
But he can’t launch on his own.
Nope. Think how stupid it would be to give that power to any one person.
“No prior president so openly assaulted the rule of law or undermined the integrity of the law enforcement community.” Well, there was Abe Lincoln, and the whole suspension of habeas corpus thing. Abe was disruptive, too. Sometimes people forget (or just never knew). Sometimes people just want to push the spin they agree with. It’s the kind of thing that brings the Law Day epiphany of the critical need for “separation of powers,” but only after the end of eight years of Obama pen-and-phone. Pen-and-phone becomes bad once you don’t like the guy with the pen and phone. Or, maybe it was always bad, purely because of the way the pen and phone get passed around (but people who tried to point that out over the last several years were largely ignored). Will a pen-and-phone/media/courts melee be better than simple pen-and-phone? Very possibly, so long as it continues to disrupt the aspirations of both “parties” (and indeed, just as pen-and-phone predictably outlasted Obama, pen-and-phone/media/courts will predictably outlast Trump).
Then again, a lot of lives were lost when Abe was president.
More recently, we have had the “extraordinary rendition” mechanism, which amounts to warrantless kidnapping and deportation for torture, on executive fiat, with no (or at least no disclosed) standards or procedural safeguards for its exercise. Because of the prevalent fear-mongering of the day, the media and courts ran and hid on that one. Two presidents later, that particular assertion of pen-and-phone has yet to be disavowed by the executive, or overturned by the courts. It is presumably still there, although the media has largely stopped saying anything about it.
If you are going to make a list of who has acted and who hasn’t, I think you should include the Congress, if only as a courtesy.
I typically afford Congress the courtesy they deserve.
“After Trump, there will be another president. If the presumption of regularity is reversed for Trump, will he or she be subject to questions about his mental processes by the other team, the threat of indictment or impeachment for lying or obstruction hanging over his head? Without the presumption of regularity, no one can serve as president.”
We’re 44 and 1. Even the best teams lose every now and then. They put a Bill Buckner on the field and he throws the game. There is no reason to believe that because Don Cheetohee has lost the presumption of regularity, for good reason, that another president will also lose this presumption.
You were doing pretty well until that last sentence. There is most assuredly a reason to believe that future presidents will also lose the presumption. Courts create precedents, and they are used not just against the person you hate but all who follow. The same tactics used against Darth Cheeto will be used against the most wonderfulest president ever. The same decisions that hold legal authority alone isn’t sufficient for the exercise of power, but the underlying feelings as well, are subject to scrutiny before its approval.
Do you not realize that the hatred toward Trump mirrors the hatred of others toward elected officials on the other team? It may seem impossible, because no one can be as bad as Trump, but that’s how politics and law works.
First, I don’t hate Trump. I’m not a big fan of silver-spoon millionaires but hate is a strong word. My criticism of Trump has been limited to his behavior as candidate and executor of the highest office in the world. I’m afforded the specific right by 1A to criticise the president. It’s cool like that. Yes, I throw in some name calling but it’s just because I’m trying to get on his level.
Second, you seem to be suggesting that no matter how unqualified and dangerous a president is, we should not do what is allowed by the constitution to protect the world from his madness, because people in the future might use these powers to protect the world from a similarly unqualified president.
Well, you may be surprised to learn I don’t disagree. This is the point where my own deeply held aversion for misuse of prosecutorial discretion and arbitrary application of the law are in direct conflict with my deeply held belief that the office of the president is incredibly important, does have the ability to make incredibly consequential changes to the course of human events, and must be held by someone with the intellectual and moral capacity to lead the world.
In my estimation, Trump is unquestionably unfit for office. So far, I’ve seen zero evidence that anyone has overstepped the bounds of the law while investigating his potential crimes.
Cool story, Jake.