Tag Archives: Trump

The Real Checks And Balances

It always comes back to culture–the paradigms into which we are socialized. We call the color of the sky “blue” because that’s what everyone else calls it. We wear clothing that (usually) covers our genitals because we have been socialized to believe such coverage is appropriate. (I’m waiting for the anti-mask “patriots” to insist that laws requiring such clothing are an assault on their liberties…but I digress.) 

We accept society’s expectations for large areas of our behavior: the side of the road we drive on, what we consider edible, how many people there are in a marriage…(my students are always shocked to discover that–despite the anti-same-sex-marriage insistence that marriage is between “one man and one woman,” in many countries those unions are between one man and two or three women…)

Culture is incredibly important. True, changing a culture is a very slow process, a fact that tends to “bake in” unjust rules and attitudes. But without cultural expectations, we humans would have to make decisions about every aspect of our daily lives. I once heard a lecturer ask why men in certain businesses/professions routinely and unthinkingly wore a patterned piece of cloth around their necks. (A tie.)That expectation does appear to be changing.

All this is to say that most behaviors are not simply the result of explicit laws or rules. We call expectations of many behaviors, especially ethical ones, “norms,” and those expectations are frequently more potent that statutes and ordinances–especially when they guide political behavior.

A recent column from the New York Times is on point.Tim Wu asked “What really saved the Republic from Trump?” Assuming the Republic actually was saved–I worry that the jury is still out–I think Wu makes an important point.

Americans are taught that the main function of the U.S. Constitution is the control of executive power: curtailing presidents who might seek to become tyrants. Other republics have lapsed into dictatorships (the Roman Republic, the Weimar Republic, the Republic of China and so on), but our elaborate constitutional system of checks and balances, engineered largely by James Madison, protects us from despotism.

Or so we think. The presidency of Donald Trump, aggressive in its autocratic impulses but mostly thwarted from realizing them, should prompt a re-examination of that idea. For our system of checks and balances, in which the three branches of government are empowered to control or influence the actions of the others, played a disappointingly small role in stopping Mr. Trump from assuming the unlimited powers he seemed to want.

What really saved the Republic from Mr. Trump was a different set of limits on the executive: an informal and unofficial set of institutional norms upheld by federal prosecutors, military officers and state elections officials. You might call these values our “unwritten constitution.” Whatever you call them, they were the decisive factor.

Wu described the failures of multiple, explicit “checks and balances” over the last four years, pointing out that Senate Republicans mostly allowed Trump to do whatever he wanted. They allowed “acting” appointees who could not have been confirmed to run the federal government. They treated the impeachment process as nothing but a party-line vote. It’s hard to dispute Wu’s conclusion that the Senate “became a rubber stamp for executive overreach.”

Wu identified as “firewalls” what he called the three pillars of the unwritten constitution.

The first is the customary separation between the president and federal criminal prosecution (even though the Department of Justice is part of the executive branch). The second is the traditional political neutrality of the military (even though the president is the commander in chief of the armed forces). The third is the personal integrity of state elections officials.

I had considerable concern about the first of those firewalls under William Barr, but it ultimately did hold; Barr refused to find massive vote fraud where it didn’t exist. And a large number of lawyers with the DOJ protested, quit and otherwise made it clear that efforts to turn the Department into Trump’s personal law firm were a violation of DOJ culture.

Members of the military have been pretty uniformly admirable, and to my great surprise, so have Republican election officials–even in Georgia.

The question going forward is:  how do we sustain and nourish those democratic norms? How do we reinforce a small-d democratic culture, and ensure that future generations share its expectations? I don’t have the answer, but I’m fairly certain it involves a significant improvement in civics education. 

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That New Old-Time Religion

The recent behavior of thousands of members of the GOP sent me to Google to read up on collective delusions. One academic has explained such delusions, and differentiated them from mass hysteria. (Hysteria evidently involves physical symptoms.) Collective delusions are defined as the spontaneous spread of false or exaggerated beliefs within a population at large, temporarily affecting a region, culture or country.

I found the term “temporarily” soothing…

What I certainly did not find soothing was an article by Andrew Sullivan, sent to me by a friend. I’ve always found Sullivan thoughtful, although I have philosophical disagreements with him. In this essay, he makes a very persuasive case for the marriage of Evangelical Christianity with Trumpism. I say “persuasive” because his theory offers an explanation for what is otherwise inexplicable: the belief that an election lost decisively in the Electoral College and by over seven million popular votes–an election overseen in many states by Republicans, an election in which down-ballot Republicans did well–was “rigged” against Trump.

In a post-election Marist poll, 60 percent of white evangelicals said they did not believe the 2020 election result was accurate, and 50 percent believed that Trump should not concede.

Sullivan has coined the term “Christianist” to describe the Evangelicals to whom he refers:

In a manner very hard to understand from the outside, American evangelical Christianity has both deepened its fusion of church and state in the last few years, and incorporated Donald Trump into its sacred schematic. Christianists now believe that Trump has been selected by God to save them from persecution and the republic from collapse. They are not in denial about Trump’s personal iniquities, but they see them as perfectly consistent with God’s use of terribly flawed human beings, throughout the Old Testament and the New, to bring about the Kingdom of Heaven.

This belief is now held with the same, unwavering fundamentalist certainty as a Biblical text. And white evangelical Christianists are the most critical constituency in Republican politics. If you ask yourself how on earth so many people have become convinced that the 2020 election was rigged, with no solid evidence, and are now prepared to tear the country apart to overturn an election result, you’ve got to take this into account. This faction, fused with Trump, is the heart and soul of the GOP. You have no future in Republican politics if you cross them. That’s why 19 Republican attorneys general, Ted Cruz, and now 106 Congressional Republicans have backed a bonkers lawsuit to try to get the Supreme Court to overturn the result.

Sullivan says that these beliefs don’t simply characterize a few “fringe nutcases.” He offers examples of what he calls “the fusion of Trumpism with religious fundamentalism,” and Evangelicals’ ahistorical insistence that the United States was founded as a Christian, rather than a secular, nation.

As most Americans, religious or not, recognize, the word “faith” means a belief for which there is no empirical evidence.  Believers who reject science are threatened not simply by this or that scientific conclusion, but by the scientific method itself– by its approach to reality and insistence upon falsification. (They shouldn’t be, of course–many things we all believe in cannot be falsified: beauty, love…but they seem unable to grasp that distinction.)

I suppose if one has been raised in a religious culture that puts primacy on faith in the unknown and unknowable, a culture that insists on the superiority of one’s religion and skin color (because make no mistake, this particular version of “Christianity” incorporates white supremacy, along with male dominance), being forced to confront a reality that challenges those beliefs is intolerable.

I’d love to dismiss members of the cult that was once a political party as inconsequential, but I’ve read enough history to know how much war, devastation and human misery fundamentalisms have caused. (The nation’s founders read that history too–which is why they separated church from state..)

I sure hope this eruption of a “collective delusion” proves temporary.

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A Depressing Analysis

Despite overwhelming relief at the victory of the Biden/Harris ticket, those of us horrified by Donald Trump and his enablers are still coming to terms with the fact that some 70 million people voted for four more years of the disaster we’ve just experienced.

Unlike those Republicans who continue to insist that up is down and Trump was somehow cheated out of a win, we live in the real world. We recognize that those 70 million votes were cast. The question is: why?  Trump’s hardcore base is demonstrably racist, but surely, America isn’t home to seventy million racists willing to dispense with functional governance so long as dark-skinned people and “foreign elements” are kept in their place.

Will Wilkinson considered that question in a recent column in the New York Times. He identified three factors that made the election difficult for the Democrats: partisan polarization, obscured by the inaccurate polling; the strength of what he labeled the “juiced” pre-Covid-19 economy; and the success of Mr. Trump’s denialist, open-everything-up nonresponse to the pandemic.

How could a president responsible for one of the gravest failures of governance in American history nevertheless maintain such rock-solid support? Democracy’s throw-the-bums-out feedback mechanism gets gummed up when the electorate disagrees about the identity of the bums, what did and didn’t occur on their watch and who deserves what share of the credit or blame.

When party affiliation becomes a central source of meaning and self-definition, reality itself becomes contested and verifiable facts turn into hot-button controversies. Elections can’t render an authoritative verdict on the performance of incumbents when partisans in a closely divided electorate tell wildly inconsistent stories about one another and the world they share.

Wilkinson looked at Trump’s war of words against governors and mayors — especially Democratic ones — who refused to risk their citizens’ lives by allowing economic and social activity to resume, and to Republican messaging that defined the contrast between the parties’ approaches to the pandemic as a battle between individual freedom and over-reaching government.

The Republican message couldn’t have been clearer: Workers should be able to show up, clock in, earn a normal paycheck, pay the rent and feed their kids. Democrats were telling the same workers that we need to listen to science, reopening is premature, and the economy can’t be fully restored until we beat the virus. Correct! But how does that help when rent was due last week?

Make no mistake, it was unforgivably cruel of Republicans to force blue-collar and service workers to risk death for grocery money. Yet their disinformation campaign persuaded many millions of Americans that the risk was minimal and that Democrats were keeping their workplaces and schools closed, their customers and kids at home, and their wallets empty and cupboards bare for bogus reasons.

Democrats fell into the trap Republicans set with their dogged refusal to do anything about the uncontained pandemic. Wilkinson concluded that the “spell of polarization” turns every issue into a clash of political identities. As a result, “real” Republicans largely dismissed the pandemic as a hoax, a dismissal that conveniently excused the President’s manifest failure to deal with it.

This rings true to me–so far as it goes. But political polarization alone does not and cannot explain why millions of Americans chose to occupy an alternate reality and to dismiss evidence that was staring them in the face.

Constructing a world where the deaths of one’s neighbors are attributed to something–anything– other than COVID, a world in which a President’s too-obvious-to-ignore lack of competence is a sign that he’s being hobbled by the “deep state,”a world  in which that President’s lack of humanity is explained away as “telling it like it is,” a world where science is “elitist” and warnings from doctors are politically-motivated efforts to diminish the President–such a  world requires a media infrastructure.

There are multitudes of alternate reality purveyors:  websites and cable channels and talk radio hosts willing to confirm the accuracy of your preferred “facts” and the superiority of your chosen tribe.  Trump will go, but that media infrastructure will stay.

I think I need a drink.

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The GOP Retreat From Empiricism

I am hardly the only person to observe that Trump’s election was a predictable consequence of the fact that, over a number of years, the GOP has morphed into something bearing very little resemblance to a rational, center-right political party.

Political pundits differ on when the changes began. Certainly, Nixon’s “Southern strategy” laid the groundwork for the GOP’s growing appeal to racial grievance. Stuart Stevens’ recent book It Was All A Lie detailed five decades of “hypocrisy and self-delusion” dating all the way back to the civil rights legislation of the early 1960s.

A recent article from Pressthink, a project of the Arthur L. Carter Journalism Institute at NYU, reminded readers of the 2004 Ron Suskind article about the George W. Bush White House–the article that gave us the now-ubiquitous quote about the “reality-based community.” Suskind was writing about concerns voiced by so-called  “establishment” Republicans who were increasingly encountering what Suskind called  “a confusing development” within the Bush White House. Suddenly, asking for corroborating evidence, expressing doubts, or raising facts that didn’t fit an official narrative were considered disqualifying or disloyal acts for allies of the President.

Knowing what you know now, about candidate Trump, listen to these quotes from 2004…

* “He dispenses with people who confront him with inconvenient facts.” —Bruce Bartlett, former Reagan and Bush-the-elder adviser.

* “In meetings, I’d ask if there were any facts to support our case. And for that, I was accused of disloyalty!” —Christie Whitman, head of the EPA under Bush.

* “If you operate in a certain way — by saying this is how I want to justify what I’ve already decided to do, and I don’t care how you pull it off — you guarantee that you’ll get faulty, one-sided information.” —Paul O’Neill, Treasure Secretary under Bush.

* “Open dialogue, based on facts, is not seen as something of inherent value. It may, in fact, create doubt, which undercuts faith. It could result in a loss of confidence in the decision-maker and, just as important, by the decision-maker.” —Suskind’s words.

* “A cluster of particularly vivid qualities was shaping George W. Bush’s White House through the summer of 2001: a disdain for contemplation or deliberation, an embrace of decisiveness, a retreat from empiricism, a sometimes bullying impatience with doubters and even friendly questioners.” —Suskind.

* “You’re outnumbered 2 to 1 by folks in the big, wide middle of America, busy working people who don’t read The New York Times or Washington Post or The L.A. Times. And you know what they like? They like the way [Bush] walks and the way he points, the way he exudes confidence. They have faith in him. And when you attack him for his malaprops, his jumbled syntax, it’s good for us. Because you know what those folks don’t like? They don’t like you!” — Mark McKinnon, media adviser to Bush, explaining the political logic to Suskind.

That last quote, by Mark McKinnon, goes a long way toward explaining the root emotions of today’s Trump supporters, whose overriding need is apparently to “own the libs”–no matter what the cost to the country or their own prospects.

Suskind’s article was about the growing tensions within the Republican coalition. When he talked to Bruce Bartlett, Christie Whitman, Paul O’Neill and other loyal Republicans, they conveyed alarm over what he termed “the retreat from empiricism.”

It wasn’t only Republicans who were retreating from empiricism and reality–liberals had their anti-vaxxers  and people hysterically opposed to genetically modified foods–but they lacked the influence on their party that climate change deniers and birthers had in the GOP, and that asymmetry posed a “false equivalence” problem for journalists trying to be (excuse the phrase) fair and balanced.

Worse, fact-checking Trump had little effect, because he wasn’t trying to make reference to reality in what he said. He was trying to substitute “his” reality for the one depicted in news reports.

The goal of totalitarian propaganda is to sketch out a consistent system that is simple to grasp, one that both constructs and simultaneously provides an explanation for grievances against various out-groups. It is openly intended to distort reality, partly as an expression of the leader’s power. Its open distortion of reality is both its greatest strength and greatest weakness.

On November 3d, creating an alternate reality worked for 70 million Americans.

Houston, we have a problem.

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Trump’s Frivolous Litigation

Not long after we were married, my husband–who was active in the state chapter of the American Institute of Architects– took me to an AIA-sponsored cocktail party. A somewhat inebriated attendee who had heard that I was a lawyer cornered me and wanted to know why the profession couldn’t keep lawyers from filing so many frivolous lawsuits. 

It turned out that he defined a frivolous suit as one that the plaintiff lost. (I hasten to report that most architects I know are considerably brighter than that particular specimen.)

I thought about that long-ago conversation as I listened to media reports about Trump lawyers filing multiple challenges to the election results. Thus far, those challenges have been overwhelmingly unsuccessful, and in this particular case, those losses–and the reason for them– are evidence of their frivolity. 

Wikipedia addresses the confusion between a claim that is ultimately unsuccessful and one that is frivolous.

Frivolous litigation is the use of legal processes with apparent disregard for the merit of one’s own arguments. It includes presenting an argument with reason to know that it would certainly fail, or acting without a basic level of diligence in researching the relevant law and facts. The fact that a claim is lost does not imply that it was frivolous.

The entry goes on to explain that a frivolous claim may be one that is based on an “absurd” legal theory, or it may involve repeated, duplicative motions or lawsuits–basically, it’s a lawsuit that lacks a genuine, underlying justification in fact, or because existing laws or legal judgments unequivocally prohibit the claim.

The federal courts, and most states, do provide remedies when a lawsuit has been deemed to be frivolous. Most allow the judge to award court costs and attorneys’ fees to the targeted person or company. In several states, lawyers who bring civil actions without probable cause will be liable to the prevailing party for double or even triple damages if the court determines that the action was brought “with malice to vex and trouble.”

The prevailing party may also file a grievance against the attorney who filed the suit for violating the Rules of Professional Conduct, which clearly prohibit an ethical lawyer from engaging in such behavior.

Thus far, to the best of my knowledge, only one lawsuit filed by the Trump campaign achieved anything. That was a Pennsylvania case that succeeded in moving the Republican observers of the count–who were already in the room–six feet closer to the people who were actually doing the counting. Every other suit has been summarily dismissed for lack of any evidence of fraud or wrongdoing.

In an earlier post, I quoted Justin Levitt’s observation that–in the absence of facts sufficient to show a legal violation– these lawsuits were simply “tweets with filing fees.”  They aren’t intended to change an election result; they are intended to support the narrative  being conveyed to Trump’s credulous and angry base.

Every lawyer with whom I’ve discussed this PR tactic–including longtime Republicans–has dismissed the flurry of lawsuits as a delaying gimmick, a way to forestall an admission that  Trump lost. 

The Trump Campaign has nevertheless begun fundraising to cover its legal costs (although apparently, the “fine print” notes that monies raised will mostly go to pay off campaign debt). If I were a Biden lawyer defending against one of these petulant exercises masquerading as a lawsuits, I’d ask for whatever damages for frivolous lawsuits are available in that state–and I’d file a grievance with the state’s Disciplinary Commission. 

Evidently, the Lincoln Project intends to publicize the appalling lack of legal ethics being displayed by the lawyers willing to subvert the rule of law for monetary and partisan ends.There are also reports that a few principled lawyers have resigned from the firms that have agreed to handle these cases.

When this bratty tantrum concludes, its inexcusable assault on legal principle will be added to the very long list of norms attacked and weakened by this pathetic excuse for a human and his enablers. 

No one who has lived through the last four years could reasonably expect anything better from Trump–but the lawyers who are facilitating this travesty know better. They should be held to account.

And Bill Barr should be disbarred.

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