Law cannot save us from politics

During the campaign, I was forced to grudgingly admit that Trump had said something true: namely, that Bush should be held responsible for his negligence in failing to prevent 9/11 and that the Iraq War was an unmitigated disaster. In recent days, I have regretably come to a similar conclusion. It is true, both as a question of law and as a question of political theory, that “the president cannot have a conflict of interest.” I should say immediately that I do not mean that it is impossible for such a conflict of interest to exist in the eyes of a reasonable observer — it is abundantly obvious that many such conflicts do exist in Trump’s case. But the implication of his claim is that such conflicts are not legally actionable, and he is correct about that.

More broadly, the act of removing a president is not and cannot be a legal issue. It is intrinsically a political one, which means that it is a matter of human decision and responsibility. In our present example, the Electors, who do in fact have unlimited authority to choose the president, might choose to exercise that political authority in such a way as to exclude Trump. Their reasoning may well include their perception of his massive conflicts of interest, but those conflicts of interest in themselves do not force the Electors to behave in any specific way. They can, and most likely will, just “go with the flow” and vote for the candidate they have been assigned to vote for. But that, too, is a political and not a legal choice.

Similarly, there is no possible eventuality that would legally compel Congress to impeach Trump. A situation may arise in which even the most hardened Republican would almost certainly agree that enough is enough and he needs to go, but that would be a free decision by a moral agent who has been entrusted with political authority. But if they don’t want to do it, then nothing can force them — including the Constitutional provision forbidding foreign emoluments. Indeed, if it turned out that Trump was secretly under 35 years of age or had been born in Kenya and planted as a Manchurian candidate by a gay socialist Muslim cabal, Congress could still choose not to impeach him.

Personally, I do not trust the people who have been collectively entrusted with the authority to either prevent Trump’s inauguration or remove him from office. While some individuals may be inclined to do the right thing, the majority of them are nihilist opportunists who are happy to ride on the coattails of the technicality that unexpectedly delivered Trump to the White House, in the hopes of advancing their own agendas. There is no legal remedy for this situation, either. The only option is to make the political decision to deprive them of that authority at the next available opportunity and replace them with more trustworthy people.

3 thoughts on “Law cannot save us from politics

  1. Everything you say is true. On the other hand, Congress has (I’m discovering all sorts of things for the first time on account of this election) really quite extraordinary latitude when it comes to deciding to impeach Trump. You’re quite correct that most of the politicians in this position are motivated by self- rather than national-interest. But surely the vast majority of these career Republicans would prefer a more reliable, more predictable right-wing figure in office. So it seems to me there is only one calculation that governs everything else, running through the heads of them all: ‘if we impeach him we piss off his base. How much does that latter fact worry us?’ If the needle swings far enough in the direction of ‘it doesn’t worry us overmuch’ (for example: if they figure they can continue winning elections via the standard strategies of holding the religious right, disenfranching black voters and so on) then he could be out in months. But self-interested career Republicans are also liable to be cautious individuals, so I wouldn’t hold my breath on this eventuality.

  2. The obvious that lies hidden in plain view. One could as well, extend this to every aspect of law. There is nothing automatic about law. The very distribution of constitutional powers insures this. The court may rule as it will, but the executive is still free to enforce, or not to enforce its decisions.

  3. The Best Essay I’ve read about the 2016 elections was written in 1964. Then, Goldwater had lost. Last month Trump won. But they were both riding the same wave of what the writer called “The Paranoid style in American Politics”. Just substitute Muslim for Catholic, and Clinton for Marshall as you read. File under “the more things change, the more they stay the same”.

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