Only Democrats Can Restore Faith in the Political Process

Donald Trump seems hell-bent on becoming the first president to be impeached for tweeting. On Thursday and Friday, he fired off tweets that both confirmed he was under investigation and seemed to be trying to sabotage the process:

Faced with a lawless president, Democrats have to start thinking about their constitutional duties. Trump is not a normal president whom Democrats can agree with, or dispute, on policy terms. He represents a fundamental challenge to the functioning of American democracy, and he raises the most serious questions about presidential power.

As California Senator Dianne Feinstein argued on Friday, the above tweets showed an alarming contempt for the rule of law. “The message the president is sending through his tweets is that he believes the rule of law doesn’t apply to him and that anyone who thinks otherwise will be fired,” Feinstein, a Democrat, said in a statement. “That’s undemocratic on its face and a blatant violation of the president’s oath of office.” Feinstein’s words aimed to shore up the government officials whom Trump is threatening, and to serve as a warning that there would be political backlash if Trump tried to fire Deputy Attorney General Rod Rosenstein or Justice Department special counsel Robert Mueller.

As far as it goes, Feinstein’s gesture was appropriate. If Trump did fire Rosenstein or Mueller, this would be further evidence of obstruction of justice. Yet protecting them can’t be the main instrument of resisting and restraining Trump. Indeed, relying on Rosenstein and Mueller as barriers against Trump’s worst excesses is a prime example of a trap that liberals have fallen into time and again when dealing with presidential abuse of power—a tradition of “prosecutorial liberalism,” which seeks legal rather than political remedies to punish presidential misdeeds. Such an approach is dangerous because it allows legislators to pass off political problems to apolitical law enforcement officials.

Serious political crimes aren’t the same as regular ones: They require not just punishment for lawbreakers, but also political fixes. That’s why the Democratic Party can’t rely on the likes of Rosenstein and Mueller. In fact, since Republicans largely remain loyal to Trump, Democrats are the only ones capable of truly solving this crisis—if they’re given the power to do so. They just have to convince voters of it.

Watergate is often seen as the zenith of modern political scandal. Yet, there was only a minimal attempt by Congress back then to solve the problem of the imperial presidency. Instead, almost every subsequent presidency has gotten bogged down in legal quagmires, as Congress uses law enforcement as a Band-Aid, without grappling with the real problem of presidential power. To criminalize the political process is to evade checks and balances, and it has resulted in a never ending tit-for-tat, where one party seeks revenge by scandalizing the other.

Gerald Ford poisoned his own presidency from the start by pardoning Richard Nixon, thereby setting a precedent for protecting executive branch lawbreaking. Ronald Reagan’s presidency nearly capsized because of the Iran-Contra affair, which stained his successor, too; George H. W. Bush pardoned many leading figures, including Caspar Weinberger and Robert McFarlane, which broadened the precedent by showing how a wide-ranging criminal conspiracy could be shielded after the fact. Bush’s son followed this tradition by commuting the sentence of Scooter Libby, the former chief of staff to Vice President Dick Cheney, who had been guilty of perjury and obstruction of justice. Democrats got a taste of the criminalization of politics with various ginned up scandals against the Clintons, ranging from Bill Clinton’s perjury during the Monica Lewinsky affair to Hillary Clinton’s use of a private email server.

President Barack Obama seems to have escaped this pattern, since his administration was notably squeaky clean. The public largely saw the Benghazi, Fast and Furious, and IRS controversies for what they were: Desperate, partisan attempts by Republicans to damage a popular president. Yet in a different way, Obama contributed to the larger constitutional crisis that has gone unresolved. Obama greatly expanded the power of the president to operate unilaterally, notably through drone strikes and executive orders on domestic policy. This left a dangerous set of tools to be abused by future presidents, beginning with Donald Trump.

In all the major modern presidential scandals, prosecutors and law enforcement officials have played a central role—from Lawrence Walsh to Ken Starr to Patrick Fitzgerald to James Comey to Robert Mueller. It’s easy to see why both liberals and conservatives look to these lawmen as the solution to scandals real or imagined. They fit a familiar cultural pattern found in Law and Order and many other shows: the heroic prosecutor, often an overgrown Boy Scout with a crew-cut, who works relentlessly to put the bad guys behind bars. Prosecutorial liberalism is the dream that the messiness of politics can be replaced with the moral clarity of a cop show.

While Mueller has a role to play in gathering evidence against Trump, liberals need to stop extolling prosecutors and realize that the true task of holding Trump accountable belongs to Congress. The only constitutional remedies for Trump’s actions are to be found in the legislative branch—remedies that include not just impeachment, but also passing new laws restricting executive power so that future presidents can’t behave as Trump does. Congress needs to start working on rolling back the imperial presidency, a task left incomplete since Watergate.

Given that we now know that the White House can be inhabited by someone as unstable as Trump, Congress needs to sharply limit the president’s war-making ability. Congress could also pass laws requiring presidents to make full financial disclosures before taking office, making more difficult the numerous conflicts of interest that have already bedeviled Trump’s administration.

Both impeachment and pushback against the imperial presidency are going to be hard. As Jonathan Rauch noted in a Brookings Institution report, it will be an uphill battle to get enough Republicans in the Senate to support dislodging Trump, given the president’s popularity within his own party, and the GOP Congress’ obsession with repealing Obamacare and cutting taxes. Talking about impeachment might also endanger Democrats’ chances of regaining a majority in the House of Representatives in next year’s midterm elections, particularly in districts where Trump won the popular vote.

Still, a political agenda can’t be defined by what is easiest to do. Trump’s threat to the Constitution is a real one. Moreover, having so unfit a president makes clear the dangers of the imperial presidency. Obama enjoyed the power to rain death upon countries all over the world, even killing American citizens. Are we comfortable with Trump having such powers?

Democrats face an enormous problem: How can they restore faith in a political system that elected Trump? This question extends beyond the president, as Republicans in Congress continue to downplay his wrongdoing. That Trump is symptomatic of much deeper problems can also be seen in the Republican Senate’s attempt to sneak through Obamacare repeal behind closed doors. The public and Democrats are likely to receive only the smallest of windows to see the actual bill before it is jammed through.

In their attempt to retake the House and Senate in 2018, Democrats would do well to campaign not only on dethroning Trump, but also on addressing the crisis in American democracy. The argument would be a straightforward one: Trump and the Republicans have broken our politics, and only Democrats can fix it.