Midterm fury fuels Trump’s assault on constitutional norms

Posted at 11:01 PM, Nov 11, 2018
and last updated 2018-11-13 06:52:05-05

President Donald Trump is intensifying his challenge to constitutional constraints and governing norms that are already facing their gravest test since Watergate in the 1970s.

Trump has reacted to the coming Democratic majority in the House by upping the assault on the Washington system he was elected to upend, but in a way that could be taking the nation into perilous political territory.

In the days since the fracturing of the Republican majority on power in Washington, Trump has challenged political order across a broad front.

The President has installed Matthew Whitaker, an acolyte who shares his skepticism of the Mueller probe as acting attorney general. In addition, he has stoked conspiracy theories about stolen elections in the wake of Florida’s latest vote counting controversy and has threatened to use the mechanisms of government to investigate Democrats if they investigate him.

And he has stepped up his assault on the press, including by confiscating the White House pass of CNN chief White House correspondent Jim Acosta, who asked multiple, challenging questions of Trump during a White House news conference.

All of this came days after Trump used his power as commander-in-chief to dispatch troops to the border to meet what he said was an imminent criminal invasion from a migrant caravan that is yet to materialize.

The President’s moves, with the prospect of more to come, have precipitated a surreal moment in politics, with Washington veterans debating whether a constitutional crisis is looming — or whether it is already here.

Does the acting AG threaten the rule of law?

The current epicenter of the debate concerns Whitaker, the former chief of staff to fired Attorney General Jeff Sessions who took his boss’s job.

“He should never have been appointed and … it does violence to the Constitution and the vision of our founders to appoint such a person in such a manner to be the chief legal officer in our country,” the likely next House speaker, Nancy Pelosi, said on CBS’s “Face the Nation” on Sunday.

Growing questions over Whitaker’s position will hike pressure on the President to swiftly nominate a permanent attorney general. But that nominee will face an inquisition from the Republican-led Senate over their positions on the Russia probe.

Whitaker’s critics fear he will refuse to sign off on subpoenas Mueller might request, narrow the mandate of his investigation or suppress the special counsel’s final report.

His appointment has raised fears that the President intends to use him to derail the Russia investigation. That is a realistic possibility since Trump already admitted in an NBC interview last year that he fired FBI Director James Comey because of the investigation — a move that critics say in itself amounts to an abuse of power and obstruction of justice.

Whitaker appears unlikely to heed calls to recuse himself from the probe given a decision by Sessions to do so sparked Trump’s fury and poisoned his tenure.

It may fall to the new Democratic House majority, therefore, to act as a check on any attempts by Trump to use Whitaker to interfere with Mueller, despite the President’s challenge to legal norms represented by his appointment.

Florida, Florida, Florida

The President has frequently made claims of massive voter fraud in the United States, despite the fact that all available evidence suggests that it is not a significant problem.

So it is no surprise that he has leapt into action to proclaim that Florida’s latest vote controversy is a flagrant example of Democratic larceny at the polls.

“The Florida Election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed up out of nowhere, and many ballots are missing or forged,” Trump tweeted Monday morning after having spent the weekend in Paris.

An honest vote count is no longer possible-ballots massively infected. Must go with Election Night!

No one is disputing the Sunshine’s State’s unfortunate tendency to trigger election controversy. And answers are overdue about the stewardship of elections in Broward and Palm Beach counties for instance.

Lawyers for Democratic and Republican candidates are now launching dueling campaigns. Each side has every right to make their case after the state’s Republican secretary of state ordered recounts to begin given thin margins.

“Every vote should be counted, but, by gosh, not let fraudulent or anti-Constitutional behavior prevail,” Colorado Sen. Cory Gardner, who ran the Republican Senate midterm campaign, said on CNN’s “State of the Union.”

But Trump seems to be reacting not to evidence of fraud, but to vote counts that are narrowing the gap between Democratic Senate and gubernatorial candidates Bill Nelson and Andrew Gillum and the presumed Republican victors.

Thus the Florida controversy marks the latest occasion when he is prioritizing his personal interests over a President’s duty to protect the nation’s democracy.

But by intervening personally in the race, the President is casting doubt on the integrity of the election and potentially risking long-term damage to America’s political system itself, which relies on public consent.

His furious intervention contrasts with the reaction of President Bill Clinton during an even higher-stakes confrontation in Florida, the bitterly contested recount in the 2000 presidential election, eventually handed to George W. Bush over Democrat Al Gore by the Supreme Court.

Clinton took steps to avoid politicizing the process, reasoning that America’s system depended on him staying out of it.

“I don’t think I should be involved in that,” Clinton said soon after the disputed election.

Trump’s intervention 18 years later is one reason why his critics fear he is oblivious or disdainful of traditional norms governing presidential behavior.

Lashing out at scrutiny

The Democratic capture of the House guarantees an uncomfortable period of investigation and oversight for the White House that the Republican majority deemed unnecessary during his first two years in office.

“They can play that game, but we can play it better, because we have a thing called the United States Senate,” Trump said during a Wednesday news conference.

In the latest worrying sign for the President, top Democrat Rep. Jerrold Nadler told Jake Tapper on “State of the Union” that Democrats would examine hush payments to women who allege past affairs with Trump that may infringe campaign finance laws.

“That might very well be an impeachable offense,” Nadler said.

Trump has denied the alleged affairs.

The President already reacted with fury to the notion of a new era of scrutiny from Democrats, promising a “warlike” posture if it took place, and hinted he could use the mechanisms of government to investigate them during a news conference last week.

The President also acted in a way many observers fear raises First Amendment questions by taking the unprecedented step of confiscating Acosta’s permanent White House press pass after he questioned the President on the migrant caravan.

How deep is the crisis?

Events of the last few days point clearly to an escalating challenge by the White House to political conventions and guardrails, one that could further sharpen if Trump’s reshuffle of top officials rids him of remaining restraining influences.

It is more difficult to assess whether the President’s actions have already tipped the nation into a constitutional crisis or whether the system of checks and balances has kept him on the right side of that line.

After all, two years after he was elected, voters did decide to introduce new accountability in Washington with a Democratic House after Republicans gave no sign they were willing to rein in the President’s excesses.

The courts have tempered some of Trump’s most radical ideas, watering down a Muslim travel ban he authored early in his presidency. Trump’s new use of executive power to limit asylum claims, in an apparent contravention of international law, will soon get its own day in court.

But political systems need to be nurtured constantly if they are to remain healthy. And the President’s rhetoric on the Florida controversy especially seems to edge close to the danger zone.

One veteran observer, Leon Panetta, a former White House chief of staff for Clinton and defense secretary under President Barack Obama, believes the nation’s institutions are standing firm.

“I think ultimately the institutions that our forefathers put in place are strong enough to be able to survive any administration,” Panetta said Thursday on “The Situation Room.”

But the fact that the question is even relevant is testimony to the darkening mood in Washington.