Be Thankful Trump Listened to His Lawyer For Once
(Bloomberg Opinion) -- It shouldn’t be a surprise that President Donald Trump reportedly told then-White House counsel Donald McGahn that he wanted to prosecute his 2016 rival Hillary Clinton and fired FBI Director James Comey.
Now that we know, however, the question is what to make of this revelation. My answer? The system is working.
Before you cancel my Thanksgiving invitation in disgust, hear me out.
Of course it is a threat to democracy and to the rule of law that the sitting president of the United States asked the lawyer who works most closely with him to seek criminal charges against his political opponents.
Of course it makes it worse that Clinton had already been cleared of criminal charges surrounding her email use by the Department of Justice — by Comey, in fact — and that there were no credible reasons for a criminal charge against Comey, either.
But the key element of Tuesday’s story in the New York Times is that McGahn told Trump that he couldn’t do that. McGahn apparently explained that the White House can’t tell the Justice Department whom to prosecute. The White House counsel also seems to have told Trump that while he could request an investigation of anyone he wanted, the consequences of the request could be disastrous, even leading to impeachment.
And Trump listened. So far as we know, he never went around McGahn and ordered the Justice Department to prosecute or open investigations against Clinton and Comey.
You might think that the lesson of the story is that McGahn was an extraordinary public servant, standing up to the president who could fire him at any moment.
That’s wrong, though. McGahn was not acting as a hero, the way Comey did back when he was deputy attorney general and had to stand up to Vice President Dick Cheney over renewal of a warrantless surveillance program.
McGahn was just doing his job, in the most banal way possible. He was explaining the Constitution and the rule of law to the president, so that Trump would understand what his powers were under the written Constitution and under the unwritten norms that govern criminal investigation and prosecution — and are designed to keep those things separate from partisan politics.
The real attaboy goes not to McGahn, but to the constitutional system itself.
Faced with the greatest threat to the Constitution and the rule of law in at least a generation — a president who not only has little respect for constitutional tradition but almost zero knowledge of it — the system is holding the line.
The proof is that McGahn, a genuinely undistinguished figure picked by Trump as counsel, successfully functioned as a tool of the Constitution in restraining the president from conduct that could have precipitated a genuine constitutional crisis.
Let’s be clear: An essential part of what makes a democracy count as a democracy is that elected officials don’t prosecute the candidates that they defeated. Alteration in power after repeated elections is the most basic, necessary element of any definition of democracy. (Alteration is not sufficient for a definition of democracy — but that’s a story for another day.)
For Trump to tell Clinton during the campaign that he would seek her prosecution if elected was a shocking deviation from basic democratic norms, as I wrote back when they debated. For him actually to do so while in office would have been a challenge to the very notion that the U.S. remains a functioning democracy.
It’s not clear to me whether Trump understands that he could badly shake the foundations of democracy and doesn’t care, or whether he genuinely doesn’t realize that there are actions he can take that would cast into doubt the very democratic nature of our system. If the answer is the latter, the reason for it may lie, paradoxically, in the very resilience of the system.
Past U.S. presidents, including Richard Nixon, have failed to break constitutional democracy. So maybe Trump believes the system is so resilient that he could prosecute Clinton and Comey without breaking it.
It’s worth pausing to notice that the system’s resilience contains its own risks. When something has been working for a couple of centuries (the Civil War notwithstanding), it’s easy to fall into the assumption that it can’t fail.
My argument isn’t that our constitutional democracy can’t go under, or that Trump isn’t a threat to it.
Rather, the fact that there are rules and norms, and that Trump can be told to obey them, and that (at least sometimes) he does, shows that constitutional democracy is so far surviving.
That’s especially true when Trump has violated express constitutional norms. The most recent example was the banning of CNN reporter Jim Acosta from the White House. I predicted that CNN would win its lawsuit. A couple of days later, that happened — and the White House restored the press pass.
Informal constitutional norms have been more vulnerable. That’s the kind at stake in the Clinton-Comey situation. The attorney general works for the president. If Trump had ignored McGahn and ordered a prosecution, and the Department of Justice had refused, Trump could have formally fired the officials who refused to take his orders.
That’s why McGahn had to explain to Trump that he could be impeached for going so far to break the norm of not prosecuting your partisan opponents for no good reason.
The fact that Trump listened is something to be thankful for this holiday season.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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