What frightens elites of all ideological stripes about Donald Trump, more than any particular policy position he’s adopted or flirted with, is his brazen contempt for checks on political power.
Trump has promised to “open up libel laws” so that egomaniacal billionaires like himself and his ally Peter Thiel will have an easier time running unfriendly media outlets out of business. (His ally and former campaign aide Roger Stone has been still more explicit, saying, “When Donald Trump is president he should turn off [CNN’s] FCC license.”) He has encouraged his supporters to assault his protesters. And when he talks about his hypothetical administration, Trump, like a prototypical fascist, espouses a kind of executive supremacy, untroubled in any obvious way by the balance of separated powers set forth in the constitution. In the most dramatic example, after House Speaker Paul Ryan scolded Trump for contentedly accepting the support of white supremacists, Trump brushed him off with a vague threat. “I’m sure I’m going to get along great with him,” Trump said. “And if I don’t, he’s going to have to pay a big price, OK? OK.”
It’s these transgressions—many of them abstract affronts to political norms—more than his offensive, oft-ridiculed policy agenda that places Trump beyond the pale for his conservative and liberal critics. For instance, after initially arguing that Trump’s nomination would be healthier for the country than the nomination of a more traditional Republican, liberal writer Jonathan Chait changed his mind. Citing Trump’s incitement and demagoguery, the New York magazine columnist concluded that the very nature of Trump’s candidacy (to say nothing of his potential presidency) poses an unprecedented threat to American democracy.
But can Trump really succeed in trampling the constitutional constraints (media scrutiny, legislative opposition, judicial review) that threaten his objectives? It’s common to hear political analysts say that the rules of politics don’t apply to Trump. If he could not only win the primary against the wishes of the Republican Party leadership, but win the presidency despite historically low favorability ratings, wouldn’t it follow that once he’s in office, he could transcend the limits of power that circumscribe presidents and other powerful people?
This analysis is largely projected—a reflection of the widely shared belief that the Republican Party would thwart Trump’s nomination, and that their failure to do so must be a symptom of his invincibility, when it was really just a symptom of the GOP’s brokenness.
In an essay for our recent Trump cover package, I argued that for all there is to fear and regret about Trump’s ascent, our institutions, however flawed, are still robust enough to curb his ambitions—that Trump represents more of an existential threat to modern Republicanism than to our democracy as a whole. While it’s still too early to claim vindication, and while it remains absolutely vital as matters of public policy and risk aversion that Trump be denied the powers of the presidency, early indications suggest that this relatively optimistic thesis is correct. As president, Trump would challenge our democracy in entirely new ways. But we’re seeing hopeful signs that the system is strong enough to withstand those challenges.
The most disturbing turn in Trump’s crusade against political norms is his ongoing effort to delegitimize the civil suits against Trump University—that scammy, defunct, get-rich-quick educational program that inspired Marco Rubio to call Trump a “con artist.” Late last week, at a rally in San Diego, Trump directed a racist, twelve-minute tirade at the federal judge presiding over one of those cases:
We are in front of a very hostile judge. The judge was appointed by Barack Obama—federal judge. Frankly he should recuse himself. He has given us ruling after ruling, negative, negative, negative. I have a top lawyer who said he has never seen anything like this before. ... [W]hat happens is the judge, who happens to be, we believe Mexican. ... This court system, the judges in this court system, federal court. They ought to look into Judge Curiel because what Judge Curiel is doing is a total disgrace. OK?
Judges aren’t entitled to immunity from public criticism, of course, including criticism from elected officials. Trump is by no means the first citizen to rail against a federal judge—and if he were president, and were to criticize rulings against his administration as ideologically motivated, he’d fall comfortably within a bipartisan tradition dating back more than 200 years. But to whip up a racist frenzy against a supposedly rigged judicial system and a “Mexican” judge (Curiel was born in Indiana) is a simply breathtaking act of civic insouciance. The idea here was to intimidate courts out of ruling against Trump—to escape justice through mob rule. Libertarian legal scholar David Post called it “a not-too-thinly-veiled attack on the notion of judicial independence and the rule of law.” Were Trump to succeed, it would represent a terrifying chink in the institutional armor protecting the country from authoritarianism.
Instead, the gambit has backfired. Trump had been baiting Curiel for weeks. On Friday, in response to a request by The Washington Post, the judge ordered Trump to release confidential, internal Trump University documents by June 2. In his order, Curiel cited Trump’s traducement of the judicial proceedings, and the benefit he derives as a public office-seeker from the confidentiality of those documents. So not only is it unlikely that Trump can intimidate his way out of an adverse decision in the case, but his conduct now stands to damage him politically.
Trump’s efforts to bully Paul Ryan weren’t so plainly illegitimate—unlike federal judges, Ryan and Trump both inhabit decidedly political realms—but they were democratically troubling nonetheless. His words were vague enough to be interpreted as more than mere threats to Ryan’s electability or his speakership. The idea that a House speaker would labor under the threat of reprisals from a president, or that a president would bully the officer holding the purse strings of government, takes us past a line even Richard Nixon would have been reluctant to cross.
But Ryan’s response has been completely uncolored by fear of retribution. Indeed, it has been almost comically political. With mixed results, Ryan has exploited Trump’s desire to unify the party by withholding his endorsement until Trump makes substantive policy (and characterological) concessions. Last week, Ryan announced that House Republicans will unveil a six-party policy agenda over the course of the coming month. Trump’s signature issues—mass deportation, a Muslim travel ban, and others—are conspicuously absent from that agenda. Ryan will likely make his peace with Trump just as most other leading Republicans have, but it will be based on an assessment of personal, partisan, and public interests—Can I oppose Trump and keep my job? Does supporting Trump strengthen or weaken the Republican Party? Is the country better off in Trump’s or Clinton’s hands?—rather than on extra-political duress.
The political press has been similarly, encouragingly, unbowed by Trump’s rise. Though a candidate like Trump poses real structural challenges to a media that thrives on even-handedness and neck-and-neck campaigns, the threat of libel lawsuits—or of the kind of lawless, brute censorship Roger Stone proposes—has not shielded Trump from scrutiny. To the contrary, clinching the GOP presidential nomination has exposed him to more adversarial coverage (at least in non-Fox News outlets) than he received in the throes of the primary. This has contributed to his failure to transform a successful primary campaign into a meaningful polling boost.
For all the liberal despair over Trump’s quick consolidation of Republican support, Trump remains exceedingly unpopular with the general public, unable to convince the speaker of the House of his own party to endorse him, and subject to the rule of law like a regular mortal. It just might be that the judiciary, Congress, and the media will respond to Trump’s constitutional challenges by operating, however imperfectly, the way were intended to operate: as bulwarks against autocracy. And if that’s the case, then the alarm at Trump’s candidacy may stem more from its novelty—a fear of things we don’t know and don’t fully understand—than from any lasting damage it’s doing to our democracy. Trump is pushing against the outer bounds of the norms our institutions impose on civic life, but the institutions are pushing back.