The pattern is so familiar that it almost starts to feel rational. Nearly every day, for the six-month slog that has been the Donald Trump presidency, it’s gone like this: The president or someone in his administration does something previously unthinkable, then legal pundits take to Twitter and the airwaves to ponder whether it was legal or constitutional or criminally prosecutable.
Can the president truly continue to enrich himself and his family by leveraging his office to benefit from foreigners? Can the president really fire the FBI director and admit he was thinking about the Russia probe while doing it? Can the president leak classified information to the Russians in the Oval Office? Can the president’s son take a meeting with Russians who are promising dirt on Hillary Clinton? Can he do that with multiple campaign advisers in the room? Can the president’s son-in-law attend such a meeting and still retain his security clearance?
Today, we have a new set of questions to toss on the pile: Can the president really pardon himself and all his friends, family, neighbors, and pets, plus fire Robert Mueller, plus threaten his attorney general?
More often than not, the answer, as it has been since the Merrick Garland blockade in the Senate, is: “norms, not laws.”
While there may or may not be specific constitutional or statutory bulwarks that prohibit what the president does every day, each time we take to the rabbit holes and alleyways to chase them down, the formal answer is either a lawyerly “it depends” or an even more lawyerly “it depends what the courts will say.”
Please don’t get me wrong. I continue to believe the law and lawyers will eventually save us all, or at least die trying. But the real answer to the myriad legal and constitutional questions Trump raises with each exhale is, of course, that the legalities don’t matter because he doesn’t care, and he either fires, berates, or isolates the lawyers around him who do care. This is asymmetrical warfare insofar as the people who continue to think in terms of the rule of law mistakenly believe that there might be legal solutions.
The Framers erected an edifice of law intended to constrain power, and the president believes that framework is made of spun sugar and cobwebs. The United States is a nation built upon, as John Adams told us, “a government of laws and not of men.” The Trump administration adheres to no law, and whatever men or women keep faith with the law rather than him are discredited as biased against the president. This only goes one way: Norms are for losers, and laws are for poor people. And now Trump has his dream team of mob lawyers and mad dogs hard at work proving that the only lawyer without a disabling conflict of interest is the one pledging fealty to him.
Don’t expect congressional Republicans to squawk. They will fight for the rule of law and the norms of good governance at precisely the moment when their jobs are on the line. The promise of a raft of newly minted blogger-judges and tax cuts will always win out over fealty to the Constitution. This is a problem that requires our focused long-term attention to money in politics, partisan gerrymandering, and voter suppression. And this is, in the end, a problem only because Americans—myself included—are prey to a form of magical thinking about law and the Constitution. The Framers believed the law would fix it, and that makes it easy to hope that the lawyers will fix it. The lawyers became the wizards, and the Constitution became a book of spells, and the best thing a citizen could hope to do is make a donation to a group of lawyers who could perform the right incantations, fondle the correct talisman, and save democracy.
There is an inspiring, entrenched public certainty that “the law” can fix everything. It’s a certainty that lets us hang back and hope for the lawyers and their laptops to swarm the airports and save the day. The Framers were largely lawyers, and I think they may have contemplated an army of citizen-lawyers—or at least citizens sufficiently vigilant about constitutional norms and the threats of genuine authoritarianism—who would take to the streets themselves rather than hoping that the American Civil Liberties Union and Citizens for Responsibility and Ethics in Washington and the Electronic Privacy Information Center could take care of it. (Although let the record reflect that these groups and the many others like them are flat-out heroes and even wizards in their own right.)
But the law is slow and reactive, and it is methodical and conservative by design. It depends on a vast machinery of lawyers and judges acting soberly and carefully, which is why it’s so very maddening, and also heartening, in perilous times. The rule of law is precisely as robust as our willingness to fight for it. And to fight for it is not quite the same thing as to ask, “Isn’t there a law?” While a nation founded on laws and not men is a noble aspiration, I am not certain that what the Framers anticipated was a constitutional regime predicated on the Harry Potter hope that all the lawyers would fix all the stuff while everyone else crossed their fingers and prayed.
On Thursday night, Neera Tanden, the president of the Center for American Progress, tweeted, “If Trump fires Mueller, we are going to have to have massive street demonstrations. Who is with me in taking to the streets?” This wasn’t a call for lawlessness as much as a reminder that we may not get another airport revolution—a moment in which it’s perfectly clear that the president has overreached and that everything will be back to normal as soon as the ACLU gets its injunction.
If Trump fires Mueller on a slender pretext of bias and conflicts of interest, or if he pardons himself and his supporters pre-emptively, it’s just not clear what the next lawsuit looks like or even whether the fixes—which are political and not legal in most instances—will manifest themselves. What is increasingly clear is that Trump’s lawlessness isn’t a problem to be solved by other people’s attorneys. Like it or not, we are all public interest lawyers now.