Rules for a constitutional crisis
I became a lawyer because of a story told to me about Watergate, by my uncle, Richard Cates. Cates was a lawyer from Madison. When the House started investigating Nixon, he was hired to be counsel to the House Committee on Impeachment. His job was to put together the facts supporting a case against Nixon, and convince the members of the House that those facts merited impeachment. (Working for him, just out of law school: Hillary Clinton.)
In Code and other Laws of Cyberspace, I described how he described to me the job of being a lawyer:
It is what a lawyer does, what a good lawyer does, that makes this system work. It is not the bluffing, or the outrage , or the strategies and tactics. It is something much simpler than that. What a good lawyer does is tell a story that persuades. Not by hiding the truth or exciting the emotion , but using reason, through a story, to persuade.
When it works, it does something to the people who experience this persuasion. Some, for the first time in their lives, see power constrained by reason. Not by votes, not by wealth, not by who someone knows — but by an argument that persuades. This is the magic of our system, however rare the miracles may be.
But the part of the story he told me then that I didn’t describe there connects directly with the constitutional crisis that is brewing within America just now. Because the real magic that my uncle described to me was the effect that this work done well had on politicians. Even he was almost moved by the seriousness with which both sides considered the impeachment. There was no politics, at least as he saw it. At least with him, Democrats weren’t grandstanding and Republicans weren’t flinching from the facts they were being shown. They knew that they were engaged in the most serious job a member of Congress could have — because they knew that in a critical sense, the very stability of the Republic depended on them behaving as adults.
As I watch the unfolding constitutional crisis in America (from Rwanda — badly planned leave!), I am fearful that our leaders don’t understand what the Watergate Congress saw. This looks not like adults addressing a crisis with calm and confidence; it looks like a circus, that can only weaken even further the fabric of our Republic.
Don’t get me wrong: I believe that Trump is behaving as badly as any President ever—certainly worse than Nixon, and maybe even worse than Johnson (Andrew, not Lyndon). He has no understanding of his place in the constitutional order. His White House has run amuck, issuing diktats without advice from either the State Department or the Department of Justice. He has no discipline. He has no understanding. And he feels himself constrained by nothing—save the pathologically thin skin that controls him as meth controls an addict. He is constitutionally compromised, and unqualified to be President. And had the Electoral College done its job, we wouldn’t be here now.
But we are here now. And what here now needs is other members of government behaving as they ought to behave. Of course, the public should protest as it has: Huge, peaceful protests insisting on the values that Donald Trump is denying. But Members of Congress need to behave like Members of Congress. They need to understand their role, and keep within it.
That role of course includes rallying the public to the values we all should share. But it does not include dressing-down border control agents, or staff working at airports. It is outrageous that border control has not obeyed court orders to permit detained immigrants access to lawyers. And I can’t begin to imagine the suffering of those immigrants, detained as they are.
But the ordinary process for dealing with that is for courts to hold those officers in contempt. There is no doubt that the lawyers who obtained the court orders will ask for that remedy. There is no doubt that at least a few of the courts will demand border patrol justify itself. The ordinary process will work. For once a court fines or jails one recalcitrant officer, the rest will quickly fall into line. In this process, there is no constitutional role for members of Congress as marshals of the courts. Their job is in Congress.
And there is plenty for them to do right now. If Trump refuses to abide by the Constitution and laws (including the Foreign Bribery Clause), he should be impeached. Obviously. That is the role of Congress. Members can begin that debate right now, they can demand hearings to address the issues. The Democrats could even hire their own careful and practiced litigator — another Richard Cates — to begin to put together the evidence they would need to proceed. That’s their job. They should do that job seriously and well.
Because if America is to avoid slipping into civil war, the people we need to keep in focus are the people who elected Donald Trump. I get that the easy way to think and talk about those Americans is to call them racists, or sexists or idiots. No doubt there are some who are those (as there are some on the other side who are each of those things too). But it is neither true nor helpful to simplify this story into good versus evil. The citizens who elected Trump are not evil. And if America is going to survive this crisis, we need to convince them first that their President should not be President. We need to show them that their own values are consistent with ours, in this respect at least.
That won’t happen with hysterics. It won’t happen with violence. It won’t happen by behaving just as badly as Donald Trump is behaving. It will only happen if the opposition is, and seems, better than Trump. That is, if it inspires in all Americans—and especially a large swath of the supporters of Trump—a recognition of the ideals that we all know we are to embrace: the Constitution, the rule of law, and government officials who know their place within that system.
We should learn from the Tea Party, yet be better than the Tea Party. The millions who are doing their duty as citizens to protest the violation of America’s values need to show up at every congressman’s office, and ask, what are you doing? This President is being enabled by the most pathetic weakness of a Republic — and precisely the weakness George Washington warned against—party over country. The fight that citizens must wage now is against that pathology with Congress first. The fight that Congress must wage now is with this out of control executive first. And the fight that the courts will wage, easily and effectively, now is with officers who don’t obey their orders.
These fights are distinct, critical, and essential. But if we’re to win, we cannot seem the crazy ones here. Our work now has got to be to unite Americans as Americans. We must remind the partisans that they are citizens first. And that as citizens, we must rally an allegiance to the Constitution that this President seems so keen to ignore.