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Tag: self-interest

  • Trump Repeats Obama’s Mistake

    Trump Repeats Obama’s Mistake

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    Donald Trump has long detested Barack Obama and sought to present himself as the opposite of his presidential predecessor in every way. But in his takeover of the Republican National Committee, he risks echoing one of Obama’s biggest political mistakes.

    Last night, Trump’s handpicked leadership of the RNC took charge and conducted a purge. The new regime, led by the new chair, Michael Whatley; the vice chair, Lara Trump; and the chief of staff, Chris LaCivita, fired about 60 employees—about a quarter of the staff—as part of “streamlining.” The “bloodbath” includes members of the communications, data, and political departments. Insiders told Politico they anticipate that existing contracts with vendors will be voided.

    When the new leaders were announced last month, I suggested that the GOP was ceasing to function as a political party, and becoming another subsidiary of Trump Inc. But there is another way to view it. For years now, the RNC has struggled. Republicans might have lost the 2016 presidential election if not for the emergence of Trump, who shook up the party’s longtime platform and forged a new coalition, turning out voters no other recent candidate had. Since then, however, Republicans have continued to lag, even with Trump juicing turnout. Republicans got slammed in the 2018 midterms, lost the 2020 presidential race, and missed expectations in 2022. Special elections have been a Democratic playground. The RNC is entering the 2024 election with a third of the Democratic National Committee’s reserves.

    From this perspective, it’s about time that Trump took charge and cleared out the deadwood. Allies such as Charlie Kirk and Representative Marjorie Taylor Greene were jubilant at the overhaul. Although Trump’s appointments of his daughter-in-law and a top campaign aide are unusual, nominees typically take over the campaign apparatus ahead of a presidential election, the better to align aims.

    Truth be told, Trump can’t really distance himself from the recent mismanagement. The deposed chair, Ronna McDaniel, was Trump’s pick in 2017, and his main complaint about her is that she was insufficiently compliant. If Trump just wants more of the same, that’s bad news for the party. Trump critics within the GOP also fear that he intends to use the party coffers as a personal defense fund, underwriting his substantial legal bills. Last week, the committee pointedly rejected a proposal by an old-line member to prevent that.

    Let’s take the best-case scenario for Republicans, though. In the past, the RNC seemed like the professionals compared with the chaotic, amateurish Trump campaigns of 2016 and 2020. (There’s a reason Trump resorted to appointing RNC Chair Reince Priebus as his first White House chief of staff, despite Priebus representing the establishment Trump hated.) This year, however, the Trump campaign has seemed organized and disciplined, and LaCivita is reportedly a big part of that. National committees tend to be bloated and old-fashioned. A more focused, streamlined operation could fix what ails the GOP.

    The problem is that Trump sees his own success and the success of the Republican Party as bound up together. But some things that are good for Trump are not good for the Republican Party over the long run. This is where Obama offers a cautionary tale.

    When he won the Democratic presidential nomination in 2008, Obama was an insurgent; the DNC had long been dominated by allies of Hillary Clinton, whom he defeated in the primary. He wasn’t as deeply embedded in the old way of doing things. Obama viewed the Democratic Party as essentially a national organization, with the goal of supporting his political goals and his reelection. Upon winning the presidency, he moved key DNC functions to Chicago, his hometown and political base, despite the protests of party insiders who worried that downballot efforts would be overshadowed by Obama’s reelection campaign. He also created a group outside the DNC, Organizing for America, to support his political movement.

    The result was a badly weakened DNC. The national focus led to a neglect of other elections. After Senator Ted Kennedy died, Democrats managed to lose a 2010 special election for his seat in Massachusetts, of all places—a failure that some Democrats blamed on the national party. The loss delayed the passage of the Affordable Care Act and required congressional Democrats to water it down to pass it.

    The Bay State special was a harbinger. As Matt Yglesias calculated in 2017, the Obama years saw Democrats lose 11 Senate seats, 62 House seats, and 12 governorships. The damage was especially bad at the state level. Democrats lost nearly 1,000 seats in state legislatures, the worst loss since Herbert Hoover dragged down the GOP. Republicans captured 29 separate chambers and gained 10 new trifectas—control of both chambers of the legislature and the governor’s mansion. All of this happened at the same time that Democratic presidential candidates won the national popular vote in the 2008, 2012, and 2016 presidential elections (as they would again in 2020).

    Democrats, including Obama, suffered for their missteps. As the Obamacare experience shows, it’s harder to push a policy agenda when you lose elections. Losing control of the Senate makes it difficult to confirm judges, especially to crucial spots such as the Supreme Court—just ask Justice Merrick Garland. And implementing policy is challenging if governors and state Houses are working against you.

    An excessive focus on presidential races is also the danger of Trump’s RNC takeover. He and his aides have announced that, like Obama, they see the party committee as basically an instrument for the presidential election. “Our mission is straightforward: maximize the Republican Party’s resources to get President Trump elected,” LaCivita told The New York Times last month. Echoing Obama’s Chicago move, the RNC is reportedly already moving most of its operations to Palm Beach, Florida, near Trump’s Mar-a-Lago headquarters. All of this makes sense. Trump is a narcissist who can’t and won’t separate his self-interest from the party’s or the nation’s.

    Slashing the national footprint of the RNC may weaken the party at lower levels. Several state parties are already a mess. The chair of the Florida GOP was recently ousted amid a sex scandal. Michigan’s GOP chair, a fervent Trump backer, was also deposed after a tumultuous stint, and the state party is reportedly broke. The Arizona GOP also recently lost its chair and has been racked by feuds. But more MAGA is unlikely to be the solution to these problems, because infighting and obsession with Trump’s election denial have been at the center of several blowups. The most effective wing of the GOP apparatus right now, the National Republican Senatorial Committee, has succeeded by managing to create some insulation from Trump, allowing it to select strong candidates. In 2020, Republican congressional candidates mostly ran ahead of Trump.

    And even if Trump’s theory of the RNC works out in 2024, what happens next? Trump will not always be the president or the nominee. Someday, Republicans will need to choose a new leader, and they may be left with only a shell of a party committee, gutted and stretched to be part of Trump’s personal election apparatus. It’s a hard and long road to rebuilding from there. Just ask a Democrat.

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    David A. Graham

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  • How Trump Gets Away With It

    How Trump Gets Away With It

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    If Donald Trump regains the presidency, he will once again become the chief law-enforcement officer of the United States. There may be no American leader less suited to “take Care that the Laws be faithfully executed,” as the Constitution directs the president. But that authority comes with the office, including command of the Justice Department and the FBI.

    We know what Trump would like to do with that power, because he’s said so out loud. He is driven by self-interest and revenge, in that order. He wants to squelch the criminal charges now pending against him, and he wants to redeploy federal prosecutors against his enemies, beginning with President Joe Biden. The important question is how much of that agenda he could actually carry out in a second term.

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    Trump tried and failed to cross many lines during his time in the White House. He proposed, for example, that the IRS conduct punitive audits of his political antagonists and that Border Patrol officers shoot migrants in the legs. Subordinates talked the former president out of many such schemes or passively resisted them by running out the clock. The whole second volume of Special Counsel Robert Mueller’s report, which documented 10 occasions on which Trump tried to obstruct justice, can be read as a compilation of thwarted directives.

    The institutional resistance Trump faced has reinforced his determination to place loyalists in key jobs should he win reelection. One example is Jeffrey Clark, who tried to help Trump overturn the 2020 election. Trump sought to appoint Clark as acting attorney general in early January 2021, but backed off after a mass-resignation threat at the DOJ. People who know him well suggest that he would not let that threat deter him a second time. Trump will also want to fire Christopher Wray, the FBI director, and replace him with someone more pliable. Only tradition, not binding law, prevents the president and his political appointees from issuing orders to the FBI about its investigations.

    The top jobs at the DOJ require Senate confirmation, and even a Republican Senate might not confirm an indicted conspirator to overturn an election like Clark for attorney general. Under the Vacancies Reform Act, which regulates temporary appointments, Trump can appoint any currently serving Senate-confirmed official from anywhere in the executive branch as acting attorney general. Of course, all of the officials serving at the beginning of his new term would be holdovers from the Biden administration.

    Trump’s allies are searching for loyalists among the Republicans currently serving on several dozen independent boards and commissions, such as the Federal Trade Commission, that have “party balancing” requirements for their appointees. Alternatively, Trump could choose any senior career official in the Justice Department who has served for at least 90 days in a position ranked GS-15 or higher on the federal pay scale—a cohort that includes, for example, senior trial attorneys, division counsels, and section chiefs. As Anne Joseph O’Connell, a Stanford law professor and an expert on the Vacancies Reform Act, reminded me, “This is how we got Matthew Whitaker,” the former attorney general’s chief of staff, as acting attorney general. (Whitaker was widely criticized as unqualified.)

    Would some career officials, somewhere among the department’s 115,000 employees, do Trump’s bidding in exchange for an acting appointment? Trump’s team is looking.

    Once Trump has installed loyalists in crucial posts, his first priority—an urgent one for a man facing 91 felony charges in four jurisdictions—would be to save himself from conviction and imprisonment.

    Of the four indictments against him, two are federal: the Florida case, with charges of unlawful retention of classified documents and obstruction of justice, and the Washington case, which charges Trump with unlawful efforts to overturn the 2020 election. Those will be the easiest for him to dispose of.

    To begin with, there is little to stop Trump from firing Special Counsel Jack Smith, who is overseeing both of the federal investigations. Justice Department regulations confer a measure of protection on a special counsel against arbitrary dismissal, but he may be removed for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.” That last clause is a catchall that Trump could readily invoke.

    The regulations state that a special counsel may be fired “only by the personal action of the Attorney General,” but that would not stop Trump either. In the unlikely event that his handpicked attorney general were reluctant, he could fire the attorney general and keep on firing successors until he found one to do his bidding, as Richard Nixon did to get rid of Archibald Cox. Alternatively, Trump could claim—and probably prevail, if it came to a lawsuit—that the president is not bound by Justice Department regulations and can fire the special counsel himself.

    Smith’s departure would still leave Trump’s federal criminal charges intact, but no law would prevent Trump from ordering that they be dropped. He could do so even with a trial in progress, right up to the moment before a jury returned a verdict. No legal expert I talked with expressed any doubt that he could get away with this.

    Dismissing the charges would require the trial judges’ consent. But even if the judges were to object, Trump would almost certainly win on appeal: The Supreme Court is not likely to let a district judge decide whether or not the Justice Department has to prosecute a case.

    Trump will be able to avoid going to prison even if he has already been convicted of federal charges before he is sworn in. Here again, a trial judge is unlikely to order Trump imprisoned, even after sentencing, before he exhausts his appeals. And there is no plausible scenario in which that happens before Inauguration Day.

    At any time while Trump’s appeals are pending, his Justice Department may notify the appellate court that the prosecution no longer wishes to support his conviction. This is known as a confession of error on the government’s part; the effect, if the court grants the request, is to vacate a conviction. Under Attorney General Bill Barr, the Trump administration did something to similar effect in a false-statements case against former National Security Adviser Michael Flynn, moving to dismiss the charges after Flynn had pleaded guilty but before his sentencing. (Trump later pardoned Flynn.) According to the relevant rule of criminal procedure, dismissal during prosecution—including on appeal from a conviction—requires “leave of the court,” but it’s highly unlikely that an appellate court would refuse to grant such a motion to dismiss.

    Trump might also invoke the pardon power on his own behalf. He has already asserted, as far back as 2018, that “I have the absolute right to PARDON myself.” No president has ever tried this, and whether he can is a contested question among legal scholars. Experts who agree with Trump say the Constitution frames the pardon power as total but for one exception, implicitly blessing all other uses. (The exception is that the president may not pardon an impeachment.) Those who disagree include the Justice Department itself, through its Office of Legal Counsel, which concluded in 1974 that a self-pardon would be invalid under “the fundamental rule that no one may be a judge in his own case.”

    But the debate over self-pardons wouldn’t matter much to Trump in practice. If he pardoned himself of all criminal charges, there would be no one with standing to challenge the pardon in court—other than, perhaps, the Justice Department, which would be under Trump’s control.

    Unlike the federal charges, Trump’s state criminal cases—for alleged racketeering and election interference in Georgia and hush-money payments to a porn star in New York—would not fall under his authority as president. Even so, the presidency would very likely protect him for at least the duration of his second term.

    The Office of Legal Counsel, which makes authoritative interpretations of the law for the executive branch, has twice opined, in 1973 and again in 2000, that “the indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” That conclusion is binding for federal prosecutors, but state prosecutors are not obliged to follow it.

    No one knows what would happen if Fani Willis, the district attorney in Fulton County, Georgia, or Alvin Bragg, the DA in New York, decided to press ahead with their cases against Trump should he regain the presidency. Like so many outlandish questions pertaining to Trump, this one has no judicial precedent, because no sitting president has ever been charged with felony crimes. But legal scholars told me that Trump would have strong arguments, at least, to defer state criminal proceedings against him until he left the White House in 2029. By then, new prosecutors, with new priorities, may have replaced Willis and Bragg.

    Trump has named a long list of people as deserving of criminal charges, or execution. Among them are Joe Biden, Mark Milley, James Comey, Andrew McCabe, John Brennan, James Clapper, and Arthur Engoron, the judge in his New York civil fraud case.

    If he returns to office, Trump may not even have to order their prosecutions himself. He will be surrounded by allies who know what he wants. One likely DOJ appointee is Mike Davis, a Republican who has substantial government credentials: He was a law clerk for Supreme Court Justice Neil Gorsuch and chief counsel for nominations to Senator Charles Grassley when Grassley chaired the Judiciary Committee.

    If Davis were acting attorney general, he said on a right-wing YouTube show, he would “rain hell on Washington.” First, “we’re gonna fire a lot of people in the executive branch, in the deep state.” He would also “indict Joe Biden and Hunter Biden and James Biden and every other scumball, sleazeball Biden.” And “every January 6 defendant is gonna get a pardon.” Trump could not immediately appoint an outsider like Davis attorney general. But he could make him a Justice Department section chief, and then appoint him as acting attorney general after 90 days.

    Trump could also appoint—or direct his attorney general to appoint—any lawyer, at any time, as special counsel to the Justice Department, with the authority to bring charges and prosecute a case. Trump might not be able to convict his political enemies of spurious charges, but he could immiserate them with years of investigations and require them to run up millions of dollars in legal fees.

    Likewise, if he managed to place sufficiently zealous allies in the Office of Legal Counsel, Trump could obtain legal authority for any number of otherwise lawless transgressions. Vice President Dick Cheney did that in the George W. Bush administration, inducing the OLC to issue opinions that authorized torture and warrantless domestic surveillance. Those opinions were later repudiated, but they guided policy for years. Trump’s history suggests that he might seek comparable legal blessing for the use of lethal force at the southern border, deployment of federal troops against political demonstrators, federal seizure of state voting machines, or deferral of the next election in order to stay in power. He would be limited only by the willingness of Congress, the Supreme Court, and the career civil service to say no.

    It occurred to me, as I interviewed government veterans and legal scholars, that they might be blinkered by their own expertise when they try to anticipate what Trump would do. All of the abuses they foresee are based on the ostensibly lawful powers of the president, even if they amount to gross ruptures of legal norms and boundaries. What transgressions could he commit, that is, within the law?

    But Trump himself isn’t thinking that way. On Truth Social, in December 2022, he posted that righting a wrong of sufficient “magnitude” (in this case, his fictitious claim of election fraud) “allows for the termination of all rules, regulations, and articles, even those found in the Constitution.”

    The “take Care” clause of the Constitution calls for the president to see that laws are carried out faithfully. But what if a court rules against Trump and he simply refuses to comply? It’s not obvious who would—or could—enforce the ruling.


    This article appears in the January/February 2024 print edition with the headline “Trump Will Get Away With It.”

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    Barton Gellman

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