The New Post-Trump Constitution

President Trump speaks to reporters with Vice President Mike Pence as he arrives to address a closed Senate Republican policy lunch on Capitol Hill, January 9, 2019. (Jonathan Ernst/Reuters)
The new normal: Impeachment as a routine partisan tool, endless investigations, lying under oath with impunity, surveillance of political enemies, zero accountability …

The Left sees Donald Trump’s comportment, rallies, and tweets as a new low in presidential behavior that justifies extraordinary countermeasures. But Trump’s personal characteristics are idiosyncratic and may or may not become institutionalized by subsequent presidents. And it is not as if liberal icons such as FDR, LBJ, JFK, and Bill Clinton suddenly became saintly in office.

What is far scarier is the reaction to Trump, in both the constitutional and political sense. What follows are likely the new norms for the next generation of presidents, and they will probably be equally applied to Democrats who implemented them in the Trump era.

1) Private presidential phone calls with foreign leaders will be leaked and printed in the major media. The point will be not so much to air breaking news as to embarrass the president or to use such disclosures to stymie his foreign policy. Those who leak such information will be canonized as part of a “resistance.” Prominent officials in government will publish anonymous op-eds in the New York Times bragging about how they are daily undermining a new president’s administration.

2) Impeachment is now a casual affair. It requires no report of illegal or unethical behavior by a special counsel or special prosecutor. It will not be bipartisan but solely the action of the opposition party in the House when it is in the majority.

Public support will not matter. Much less will it be needed. Impeachment will be applied equally to a first- or second-term presidency. And it will become useful in a reelection year to help drive down an incumbent’s popularity.

Even when there is no chance of conviction in the Senate — as when the impeachment indictment is weak and the president’s own party controls the upper House — impeachment will nonetheless proceed, because it is now seen as a banal, politicized vote of no confidence and thus an occasionally useful political tool.

There will be no time limit on or shelf life of a successful impeachment. Once a president is impeached, the writ may simply sit until the House majority feels that the climate or polls are ripe to refer the articles to the Senate for trial, whether in days, weeks, months, or years. The writ’s clauses entailing supposed wrongdoing may post facto grow or shrink as news headlines and presidential popularity gyrate. Impeachment will begin not with a Judiciary Committee but with a House Intelligence Committee, whose chair will decide rules of cross-examination and witness appearances in secret in the basement of the House. Information will be selectively released to the media by the chair of the House Intelligence Committee alone to massage impeachment momentum.

3) There will be no need to specify “treason, bribery, or other high crimes and misdemeanors” in any impeachment writ against a president. “Obstruction” and the “abuse of power” will do well enough. Either can be defined largely in terms of ongoing policy differences with the opposition party. Obstructing the opposition’s effort to impeach a president and abort his agenda is now an abuse of power.

4) Special counsels and special prosecutors are now irrelevant. Their appointment will be seen as patently political if not redundant. If such ossified appointees find no evidence of presidential wrongdoing, it will not matter, because their appointments were always designed foremost to embarrass and weaken a president and detract from his role as chief executive rather than find concrete evidence of wrongdoing. Whatever data they find can be used for political advantage, even if it is contradicted by the special counsels’ own eventual conclusions. The key for a special prosecutor will be to draw out the investigation — in terms of time, money, and resources — and serve, in the manner of the new definition of impeachment, as a sword of Damocles over the president’s head.

5) The Washington top echelon of the CIA, FBI, and NSA will be largely immune from oversight. If they wish to spy on a presidential candidate or curtail the options of a sitting president, they will easily use their powers of surveillance, leaking, and spying for political purposes — purposes mostly defined as protecting the status quo of the permanent government. Upon retirement, such intelligence heads will retain their security clearances and use this inside access to obtain lucrative analyst billets on cable news channels deemed hostile to the incumbent administration. No one will care much when an FBI or CIA director lies under oath to Congress. There will be no indictments when high intelligence officials deliberately mislead federal courts, lie to federal investigators and the public, and conspire to derail political campaigns.

6) Reverse targeting of political opponents will be the normal behavior of intelligence agencies working closely with an incumbent lame-duck administration. Political rivals and opponents can be surveilled by warrants that are aimed nominally at third-party targets. The names of surveilled political opponents then can be unmasked when presidential appointees request it — the more unmaskings, and the more extraneous they are, the better. And the ensuing information will be leaked to the popular press with impunity.

7) The media, like academia and Hollywood, are now an extension of the progressive party. The recalibrated education and entertainment industries are expected, as part of their job security, to aid liberal agendas, with no need to worry that they’ll lose their reputations as disinterested and unbiased institutions. There is no longer any such thing as being unbiased. The new mantra is that everyone and all outlets have points of view, so we might as well recognize that there is nothing wrong in expressing and promoting them for political and ideological advantage.

8) Presidential candidates can hire foreign nationals to aid their campaign by collecting embarrassing innuendo and rumor — almost always false — and then use both high government officials and members of the Washington and New York media to disseminate and publicize damaging rumors about a political rival. This gambit will work especially during the latter months of an election campaign, during a presidential transition, and in the early months of a nascent presidency when it is not fully adjusted to Washington protocol and therefore deemed especially vulnerable. The protocol will be to create three or four firewalls between the hit team and the candidate, feed the “research” to the DOJ, FBI, and CIA, and seed it in the media — in essence using foreign sources to smear a rival campaign while accusing one’s opponent of doing exactly that.

9) FISA courts will favor status quo government narratives, especially in matters of controversial candidates and political races. We should assume that the federal courts will believe almost anything the FBI and DOJ present as evidence in their bid to obtain permission from the court to spy on political candidates and presidents. Such surveillance will become commonplace, and the court will think there is nothing particularly wrong with filing incomplete, misleading, or untrue documents in support of surveillance requests, given the general consensus that unorthodox presidential candidates and presidents must be stymied.

10) Whistleblowers never need to be identified. They need not have any firsthand knowledge of any wrongdoing. They need not contact the relevant inspector general to first file their grievance. Rather, they will work with the opposition party in Congress to help craft complaints and forge strategies that might lead to impeachment inquiries.

This is the new political climate. It is obvious that both George W. Bush and Barack Obama could easily have been impeached under such protocols after they lost their party’s majority in the House of Representative. From now on, their successors will likely enjoy no such exemptions.

We are now on new anti-constitutional grounds, and the United States will probably never return to the constitutional customs and traditions of its first 233 years. The architects of this revolution were not arrayed in sunglasses and epaulets, or in business suits and wing tips, with briefcases. They were hip, cool, and progressive, and they boasted that they did all of this for us, the proverbial people, to cheers from cultural icons, media heavyweights, and those with advanced degrees.

The United States, at least as we knew it, came to an end, not with a loud right-wing bang, but with an insidious progressive whimper.

 

NRO contributor Victor Davis Hanson is the Martin and Illie Anderson Senior Fellow at the Hoover Institution and the author, most recently, of The Case for Trump.

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