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1974: “The System Worked”—2019: ?


Forty-five years ago, when the Watergate scandal had led at last to President Nixon’s resigning from the presidency, rather than face certain impeachment and removal from office, it was said by many, “The system worked.”

I had followed the process closely, and my reaction to that upbeat assessment was, “Just barely.” It had seemed to me a rather iffy thing. I thought the nation’s escape from the triumph of presidential lawlessness had been a dangerously close call.

Whether my more worried assessment, or the more sanguine apparent consensus, was right, I don’t know.

(I’ve heard it said several times during the current crisis over presidential criminality that if there had been no tell-tale tape of Nixon’s machinations, the case against Nixon would not have been strong enough. Which would seem to support my worries of that time. But it seems that it should not be true that the tapes were necessary, given all the other evidence.)

But whatever the case with Nixon, it’s hard to see how Americans will be able to say, regarding the situation with Trump, that “the system worked.” Not with the “system’s” process having begun even before Trump’s election, and now looking like it will last at least through a whole presidential term.

Urgent Crisis, Slow-Motion Response

Even before the election of 2016, we had the FBI already looking into Trump’s possible betrayal of the nation with our major adversary, which was engaged in a real attack on the United States (a cyber attack on the heart of our constitutional process—our elections).

And then, with Trump, within the first several months of his presidency, right out in public there was clear public evidence of the president obstructing justice with the firing of FBI Director James Comey.

Even before the firing of Comey, there were – and not in secret – strong reasons to accuse this President of other violations of the Constitution, such as the clear evidence that this president was running roughshod over the Constitution’s emoluments clause.

In other words, the possible (I would say likely) need for impeachment became evident with this president about as quickly as one can imagine could ever happen.

And when there are powerful reasons to believe the powers of the presidency are being wielded by a corrupt and criminal man who may well have betrayed the nation with our major adversary, coming to a resolution is surely a matter of some urgency.

Yet here we are, with Trump having already served the majority of the term to which (with Russian help) he was elected, and with the next election coming fast upon us, and it’s big news lately that the House Judiciary Committee has laid out procedures for an “impeachment investigation” to decide whether –at some future time – to bring articles of impeachment.

Despite such early signs of likely impeachable offenses, it has become so late in the game that journalists often ask the Democrats whether there’s enough time left to carry out their investigation.

(Even just considering what this President has done in public, the idea of his being able to run for re-election should be unthinkable. Yet so lengthy has been the process of dealing with his wrong-doing that it is universally assumed that he will indeed be the nominee of the Republican Party, with a real chance of getting a second term.)

Some urgency!

Morally Bankrupt Republicans, Fearful Democrats, and Slow-as-Molasses Courts

Of course, one obvious reason for this process being delayed so long that even a president showing criminality from the outset looks set to serve out a full term is that – for the first two years — the Congress was controlled by his own Party (and that Party had confirmed its utter moral bankruptcy by backing their president to the hilt, even in violation of their oath of office).

But Congress’s dereliction of duty is not the only reason for this unacceptably drawn out process.

(Not even if we add to the scandal of the Trump Party the attitude of the Democratic leadership in the House (motivated by the dubious judgment that impeachment would be bad politics for the Party heading into 2020) that whether or not to impeach such a President — who has assaulted the constitutional order well beyond anything seen in any previous President in American history — is simply an option that they are free not to choose.)

The Courts present us with yet another way the “system” isn’t “working” as the circumstances would seem to require.

Despite the old adage that “justice delayed is justice denied,” it may well be the case that in the overwhelming majority of cases justice is well served by the slow manner in which our legal processes work.

But not when the issue is whether the individual wielding the powers of the American presidency is a threat to the rule of law, damaging our democratic system, and endangering our national security. Every day that goes by with such a man in office inflicts substantial costs on the nation, and threatens to do still more.

The costs of justice delayed in this situation are enormous. Delay in such a national emergency amounts to playing Russian roulette, with the gun pointed at the heart of the nation.

Yet, despite the extraordinary circumstances of such a presidency, the Courts are slogging along at their usual pace.

The legal efforts to end the President’s across-the-board stonewalling of Congress, in its fulfillment of its constitutional responsibility to hold a lawless President to account, are creeping through the system. (Here and there we hear that this or that decision is unlikely to be handed down until after the 2020 election.)

The legal system thus allows itself to be weaponized by a lawless president seeking to prevail over the rule of law by running out the clock.

The “system” is “working” for the side from which the system needs protection.

Just recently, a Federal Appeals Court issued the judgment that’s considered a “victory” for the effort to hold the President accountable for his crimes. The case involves the accusation against the President for violating the emoluments clause of the Constitution. The “victory” is that the Court decided this emoluments case can move forward.

The problem is, this decision has been handed down now, in September of 2019, whereas the plaintiffs brought their case right at the beginning of the Trump presidency in 2017.

The main “victor” would seem to be the force of lawlessness that Donald Trump represents, and that the Trump Party supports.

In such a situation, what’s clearly called for is some kind of judicial accelerator.

Are there not a great many matters that can be confidently decided quickly – even in an hour — like that the IRS is legally required to comply with the demand from the House Ways and Means Committee that it be provided Donald Trump’s tax returns?

The speed of the judicial process surely should reflect proper weight having been given to the national reality of the situation: i.e. that the person being investigated is currently wielding the greatest power in the nation (as ruler of the executive branch, and commander-in-chief) , and is commanding the bully pulpit that sets the tone of our times, and is presenting the face of the nation to the wider world.

(Likewise with the speed with which a Special Prosecutorial team, in such a situation, does its work and reports to Congress.)

No “Standing” to Protect Our Most Vital Interests

Finally, there’s a problem with how our legal system puts barriers to the rule of law under the banner of the concept of “standing.” (Defined as “the ability of a party to bring a lawsuit in court based upon their stake in the outcome.”) A case can be thrown out because the Court decides that the people bringing it are not injured parties who have suffered injury caused by the would-be defendant.

The problem is, in cases like this, “injury” can be way too narrowly defined.

For example, when it came to suing Trump over the emoluments violations concerning the Trump Hotel in Washington, it seemed that only competing hotels had “standing.” They had the right kind of injury, if they could prove they’d lost business because foreign governments were using the Trump Hotel in D.C. to curry favor with the President by putting money in his pocket.

But a case brought by some states Attorneys General was thrown out because they lacked standing. They’d not suffered financial injury, like the hotel owners.

What a narrow way of viewing “standing”! How utterly inappropriate when it comes to the defense of the Constitution. Especially with those Attorneys General, who’d taken a solemn oath to protect and defend the Constitution of the United States. Doesn’t that give them a legitimate interest in being faithful to their sacred pledge?

But even more than that, when it comes to the Constitution, every citizen of the United States has a vital interest in the defense of our Constitution. Our constitutional order, and the rule of law, have been at the foundation of the blessings that generations of Americans have enjoyed.

(I have a recollection of the notion of “standing” protecting presidential lawlessness during the GW Bush presidency. In that case, if I recall, it seemed to me that no one would have standing to bring the issue before a court.)

The idea of “standing” seems so inappropriately conceived and applied where the constitutional order itself is in jeopardy that it’s rendering us nearly helpless in defending our most vital interests against lawlessness at the highest level.

Proposing Some Changes

That it is uncertain whether the rule of law, or Trump’s lawlessness, will prevail seems quite uncertain should suffice to prove that changes are necessary.

Trump’s Presidency, backed up by the Trump Party, has revealed that we’ve entered an era where we can no longer assume that political power will be wielded in America with at least a decent respect for the law, and for our basic democratic values. In this new dark era shows that we need every weapon we can get to fortify our ability to protect and defend the Constitution.

It would behoove us, I believe, to consider how – when it comes to presidential lawlessness – the legal terrain needs to be redrawn. I would propose, for example, that this is how it would look different if the system were truly working:

1) the Mueller investigation would have made a quick preliminary report to Congress, and to the public—because the situation was an emergency. A pretty good case could have been presented almost immediately. And time has been of the essence.

2) Something like a President stiffing Congress on subpoenas issued as a part of congressional oversight – and quite likely impeachment– should get a decision from the Courts virtually overnight. One doesn’t need months to decide that the President is required to cooperate with Congress in its constitutional authority, in a system that safeguards us with its “checks and balances.” Or decide that Trump’s unprecedented declarations of “absolute immunity” is bunk.

3) And any other case that bears on the defense of the Constitution, as with the emoluments case, that bears upon possible presidential criminality, should also get expedited treatment.

4) The concept of “standing” should be altered so that it does not deny the genuine interests of citizens in protecting the rule of law against a lawless chief executive.

5) And of course, we need political parties with the integrity and the political courage to honor their oath of office.

Unfortunately, that last change is not something anyone can simply enact. But for the moment, I would say that a good start would be for the party (that has lacked courage) to wage aggressive political battle against the other party (that is morally bankrupt) and drive it from power.

But for the moment, the issue is that the system is in some trouble. And it remains unclear whether the “system” will “work” well enough to prevent this system-wrecking President from prevailing.

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