Undermining Faith in Our Elections Raises Constitutional Concerns

Those of us who blogged right through to the end of George W. Bush’s presidency had already heard enough from John Yoo, thank you, before he decided to become a volunteer legal defender of President Trump. If you aren’t familiar with Yoo, his Wikipedia page is accurate and gets straight to the point.

Yoo is upset that some conservative intellectuals have been harshly critical of Trump’s suggestion that perhaps the presidential election should be delayed.

Donald Trump’s tweet last week that the possibility of mail-in voter fraud might justify postponing the November elections renewed claims that his presidency is a threat to the Constitution. Conservative commentator Henry Olsen, often a stout defender of the administration, wrote in his Washington Post column that the tweet “is the single most anti-democratic statement any sitting president has ever made.” Steven Calabresi, a conservative Northwestern law professor and co-founder of the Federalist Society, declared in the New York Times that “this latest tweet is fascistic and is itself grounds for the president’s immediate impeachment again.”

But Yoo assures us that threatening to do something unconstitutional is not problematic if you lack the constitutional power to justify the threat. This is like saying that robbing a bank is not possible because robbing banks is against the law, The Constitution is there to deter and punish, but it cannot prevent unconstitutional acts.

Kevin Williamson, most recently canned by The Atlantic for recommending hanging as a punishment for abortion, takes Yoo to task in the National Review.

With that in mind, Yoo’s insistence that in toying with the idea of delaying the election Trump “does not implicate any constitutional concerns,” seems to me to be far from self-evidently true. Yoo assures us that things will happen “automatically” in January, but in a democratic republic nothing happens automatically — we rely on republican norms, civic duty, democratic cooperation, and patriotism for the orderly operation of government and the peaceful transfer of power. In raising the possibility of delaying the election, Trump implicitly asserts an extraconstitutional power.

What emerges is a debate about Trump’s essential nature. On one side is an alarmist group who sees Trump as a nascent Mussolini on the cusp of seizing permanent power for himself. On the other is a ridiculous group of sycophants who argue that Trump is really a stout defender of constitutional limits on government power. Williamson seeks to puncture this debate by reminding us that Trump is a thoughtless creature who is incapable of acting on principle or with any significant forethought. For Williamson, he’s a simple-minded narcissistic sociopath whose actions are best compared to an avaricious gangster.

It is possible to undermine constitutional and democratic norms without having grand Napoleonic ambitions. For example, President Trump’s bizarre demand for a Treasury kickback payment from Microsoft is typical of the Trump style. It is gross and corrosive, but it is not the kind of thing a would-be dictator does — it is the kind of thing a would-be gangster does.

The “kickback payment” Williamson refers to is Trump’s demand that “the Treasury… of the United States get a lot of money” in return for approving Microsoft’s potential acquisition of TikTok. That’s not how our government works, but Trump doesn’t know that. For Williamson, this isn’t a some grand tragedic theme but more of a nonsensical farce.

We know from the Roman example (of which the Founding Fathers were acutely aware) that ordinary venality can be as dangerous to a republic as grandiose political ambition; and, as it turns out, in our own case that kind of thing is sufficiently destructive without our having to imagine Trump as an aspiring Caesar. This isn’t an opera, and it does not have to be operatic.

Williamson doesn’t envy Yoo’s effort “to reverse-engineer a plausible constitutional rationale around President Trump’s pinball antics.” He seems to think Trump’s threat is probably more corrosive than immediate, but he notes that “in a democratic republic nothing happens automatically.” 

I think F. Scott Fitzgerald put it well in The Great Gatsby when he talked about the impact careless people can have on those around them.

“They were careless people, Tom and Daisy – they smashed up things and creatures and then retreated back into their money or their vast carelessness, or whatever it was that kept them together, and let other people clean up the mess they had made.”

This may be the best characterization of Donald Trump’s adult behavior. We wouldn’t let Tom and Daisy Buchanan run the country, but we wouldn’t compare them to Mussolini either. Trump doesn’t know what is and isn’t constitutional or who has the power to delay an election and who doesn’t. But simply through his own carelessness, he will do great damage to the integrity of our electoral process. He will undermine faith in the result and prevent the country from uniting, however briefly, around his replacement. He could even inspire violence, especially if it takes a week or more to declare a winner or he gets it in his head that no one can force him to leave office.

Kevin Williamson is wrong about a lot of things, but he’s right when he mocks Yoo’s insistence that Trump’s threat to delay the election “does not implicate any constitutional concerns.” Our Republic depends on the consent of the governed, and a president who works overtime to prevent that consent is tearing at the fabric of our constitutional system. We’ll be lucky if all Trump leaves us is a mess to be cleaned up.