Pundits and members of Congress are dancing all over the head of the Constitutional crisis pin. Are we in one? Some say yes, some say not quite yet. The US is, indeed, embroiled in deep constitutional issues, but the question, important though it may be, is almost immaterial in light of the real problem: Donald Trump’s defiance of all congressional subpoenas. This has brought us to a deeper crisis yet: the question of the legitimacy of our government — something not seen in any serious way since 1865.
By legitimacy, I mean acceptance of governance by the governed — not thought out, not necessarily well-explained, but intuitive acceptance, as natural as we human beings accept oxygen from the air we breathe. When our acceptance is not automatic, when the authority of our government is seriously questioned by enough people, a society is ripe for change of a fundamental nature. In the case of the US, that would not likely be a fortunate thing.
This crisis of legitimacy has been building for a long time. It was almost 20 years ago that Robert Putnam published Bowling Alone: The Collapse and Revival of American Community, in which he laid out a good deal of data confirming that the mainstays of our cultural life have largely collapsed. From civic clubs to traditional religious institutions, from attendance at public meetings to voter participation, the signs of deterioration in community are clear. Their replacements, loosely speaking: megachurches, social media, online marketing and politics, and bigger sports and entertainment events with fewer participants and more spectators. All of which are much farther removed from anyone’s family, neighborhood or (probably shrinking) social circle. Welcome to Big Box America.
That, in a thimble, is the background. The proximate cause of the clear and present danger to our constitutional system is less abstract and more timely and urgent: Trumpism. His voters, more than any other group, display a profound lack of trust in the traditional, core institutions of civic life, particularly the news media and our own government. This goes, it should be noted, for only parts of our own government; trust of the military and law enforcement is high among Trump voters. With the help of a pliant Congress, Trump has raised an already bloated military budget to $716 billion a year, soaking up almost two-thirds of every discretionary dollar. He wants more yet, as per the contractors who dine well on all that money.
The thing is, even if Trump supporters know what is in the Constitution and know the laws of the Republic, they don’t care. According to Federal law (Section 1603 of the US Code), the House Ways and Means Committee (or its Senate counterpart, the Finance Committee) can look at anybody’s tax returns. Trump refuses to turn over his tax returns to Ways and Means, and his supporters don’t blink.
It is the very Constitution that many of Trump’s admirers claim to revere that establishes the three equal branches of our government. There is no mystery as to why there are three or why they are equal. James Madison, in Federalist 51, writes that “its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” It is a brilliant system of checks and balances — and vitally necessary to maintain a republican form of government. Yet, when Congress subpoenas people and documents from the Trump administration, the President stonewalls it all and his supporters let out a big chorus of “So what?” Sen. Lindsey Graham of South Carolina — a lawyer — publicly urged Donald Trump, Jr. to ignore the subpoena of the Senate Intelligence Committee.
Nor do these inter-branch squabbles exhaust the list of Trump’s flouting of law, the Constitution, traditional norms of political behavior, and ethics. He overrode the intelligence agencies to grant security clearances to several of his aides who did not qualify, including his son-in-law, Jared Kushner. He has numerous cabinet-level officials in acting roles, with no apparent intention to submit anyone to Senate confirmation and the process that entails. He has been in daily violation of the Constitutional emoluments clause, openly accepting foreign government money into his private businesses while pretending not to be paid. His very selection as President — and I use the word “selection” advisedly — would not have happened but for unconstitutional voter suppression and the interference of at least one hostile foreign power. Trump’s use of emergency powers in the absence of any emergency in order to impose trade-wrecking tariffs goes unchallenged in Congress.
Elijah Cummings, chairman of the House Committee on Government Oversight; Adam Schiff, chairman of House Intelligence; Richard Burr, chairman of Senate Intelligence; Jerold Nadler, chairman of House Judiciary; and House Speaker Nancy Pelosi all find themselves in an unenviable, untenable position. They require the cooperation, willing or not, of the administration to perform their constitutional duties of oversight. What happens when Trump defies everything, as he has so far, and they impose fines or even jail sentences? Do they send the Capitol Police up against the Secret Service? No, they go to court.
Then what happens? Maybe the issues take years to wend their murky way through the murkier system. Or maybe the Supreme Court decides to fast-track them and sides with Congress. And if Trump refuses to comply with court orders, what then? If past behavior is any indication of the future, that is precisely what Trump would do. He will have concluded that the judicial branch, as well as Congress, is simply in his way.
What if, having reached such a juncture, Trump loses the next election, claims fraud and refuses to leave office? Not a far-fetched scenario, is it? Trump put the Rubicon in his rearview mirror with his defiance of congressional subpoena power.
This moment in history is as critically important as any we have faced since the Civil War. The tools to deal with it may prove meager.