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The Constitutional Crisis is That There is No “Crisis”


Yesterday, Eugene Robinson argued that “the constitutional crisis is here.”

On Sunday, via Twitter, Trump demanded that the Justice Department concoct a transparently political investigation, with the aim of smearing veteran professionals at Justice and the FBI and also throwing mud at the previous administration. Trump’s only rational goal is casting doubt on the probe by special counsel Robert S. Mueller III, which appears to be closing in.

Trump’s power play is a gross misuse of his presidential authority and a dangerous departure from long-standing norms. Strongmen such as Russia’s Vladimir Putin use their justice systems to punish enemies and deflect attention from their own crimes.

Of course, we’ve been in a constitutional crisis, at the very least, since Trump fired FBI director James Comey under transparent pretenses, only to immediately admit that the real reason was Comey’s handling of the Russia probe. Subsequent revelations have clarified that, prior to the firing, Trump pressured Comey to order the FBI to limit its investigation. In the intervening months, Trump has repeatedly, and baselessly, attacked the investigation. His efforts have been aided and abetted by Republican lawmakers and the conservative media, such that large segments of the American right now believe that there is a “deep state” plot, orchestrated by the departed Obama administration, to mount a coup d’état against Trump.

Thus, various commentators have called for “red lines,” such as the “firing special counsel Robert S. Mueller III, Attorney General Jeff Sessions” or “Deputy Attorney General Rod J. Rosenstein.” A number of senators, including Republicans, have indicated that they would consider it unacceptable for Trump to dismiss Mueller. But it remains unclear whether any such “red lines” exist, and for whom they matter. Indeed, the scorched-earth approach adopted by Trump and his supporters can almost certainly succeed in subverting the rule of law without actually removing those in charge of the investigation.

This is, I suggest, the state of play. And it’s worse than we might realize. Consider how the Department of Justice has, for now, maneuvered to avoid a crisis over Trump’s most recent demands. Its inspector general will specifically investigate Trump’s allegations. Leading “FBI and Justice Department officials have agreed to meet with congressional leaders and ‘review’ highly classified information the lawmakers have been seeking as they scrutinize the handling of the Russia investigation.” The whole thing, as Robinson notes in his piece, amounts to highly inappropriate political interference. A number of experts agree.

In his classic work, Arms and Influence, Thomas Schelling writes that:

“Salami tactics,” we can be sure, were invented by a child…. Tell a child not to go in the water and he’ll sit on the bank and submerge his bare feet; he is not yet “in” the water. Acquiesce, and he’ll stand up; no more of him is in the water than before. Think it over, and he’ll start wading, not going any deeper; take a moment to decide whether this is different and he’ll go a little deeper, arguing that since he goes back and forth it all averages out. Pretty soon we are calling to him not to swim out of sight, wondering whatever happened to all our discipline

Salami tactics work by exploiting ambiguity. They involve incremental violations—of borders, political commitments, or institutional norms—that can be excused away; they always seem to fall short of inviting retaliation. Salami tactics work, in part, because responding to violations is costly. In military deterrence, those costs come in blood and treasure. During the Cold War, the cost might involve mutual annihilation. With Trump, the costs are mainly to the GOP: pushing back against Trump risks defeat in primaries, the demobilization of voters in midterms, and the loss of the ability to push the Republican political agenda. But there are also costs to Democrats, who have to worry about provoking a backlash and energizing Republican voters.

As Schelling notes:

And if there is no sharp qualitative division between a minor transgression and a major affront, but a continuous gradation of activity, one can begin his intrusion on a scale too small to provoke a reaction, and increase it by imperceptible degrees, never quite presenting a sudden, dramatic challenge that would invoke the committed response. Small violations of a truce agreement, for example, become larger and larger, and the day never comes when the camel’s back breaks under a single straw.

We might argue that Trump is a creature of “probes” and “testing.” That’s always been the nature of his confidence game. It would follow that salami tactics are a basic part of his arsenal. But I think this misreads the situation. Trump is also a creature of impulse. Whether the issue is withdrawing American troops from the Korean peninsula or firing Mueller, we see a pattern in which his advisors and aides constantly run interference. Trump wants to do something risky, for national security or his own political survival, and those around him scramble to ‘satisfy’ him while avoiding a crisis—or preventing the crisis from, so to speak, going nuclear. Everyone involved then breathes a sigh of relief.

The problem: in practice, this process produces a steady stream of “small violations” that are never enough to shift GOP elites, or provide a clear rallying cry for Democrats, and that buy even more time to propagandize the Republican base. It is possible, of course, that Trump’s handlers will fail to constrain him, or that some other dramatic event changes the dynamic. For example, Democratic control of one, or both, branches of congress might create a confrontation that ends the pattern.

For now, however, the rule of law is being subverted in ways that, per Schelling, any child should be able to recognize. The crisis never comes, and thus we continue on a very dangerous path.

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