Republicans Are Destroying Institutions to Save Their Party

Undermining Americans’ trust in the courts and law enforcement is a recipe for disaster.

The United States Capitol in Washington DC at night, September 18, 2014
The United States Capitol in Washington DC at night, September 18, 2014 (Thomas Hawk)

Republicans in the United States are ramping up their attacks on norms and institutions in pursuit of partisan interest. That is a danger to the whole country.

Journalists and universities have for decades been disparaged by the right as hopelessly biased to the point where only 15 percent of Republicans trust the mass media anymore, down from 46 percent two decades ago, and 73 percent believe higher education is going in the wrong direction.

The party now has the Justice Department, the FBI, the courts and arguably the Constitution in its sights.

Investigation

The Republican attack on the Justice Department is led by the man in charge of it: William Barr.

The attorney general still insists the FBI acted in “bad faith” when it opened an investigation into Donald Trump’s campaign’s ties to Russia based on what he calls a “completely bogus narrative,” even though a twenty-month investigation by his own inspector general, Michael Horowitz, has established the opposite.

Trump himself went so far as to claim the inspector general had found evidence of an “attempted overthrow of the government” (that apparently started before Trump was in government) by “a lot of people” in the FBI. Horowitz found no such thing.

Barr and Trump are promoting the right-wing conspiracy theory that the FBI used the private investigation of former British spy Christopher Steele on behalf of Democrats as a pretext for its own investigation.

In fact, the FBI’s investigation preceded Steele’s and was predicated on intelligence received from the government of Australia.

More importantly, the claim is a canard. By putting the emphasis on how the investigation started, Trump and his allies are trying to distract from what it found, which is Russian interference in the election and the Trump campaign’s complicity in it.

But that’s not what conservatives hear from the right-wing media, which are the only ones they trust. They hear “deep state” conspiracies, FBI corruption, and what about Hillary’s emails?!

Impeachment

The Russia investigation moved from the FBI to Special Counsel Robert Mueller, a former FBI director, in May 2017. He reported in March that the Trump campaign had welcomed — but did not outright conspire with — Russia’s election interference. Mueller indicted 34 individuals, including Trump’s personal lawyer, Michael Cohen, his national security advisor, Michael Flynn, and his campaign manager, Paul Manafort, who have all been convicted and are serving prison sentences.

Yet Trump not only continues to deny that Russia helped him win the election, mainly by leaking hacked Democratic emails and manipulating American social media; he asked the government of another country, Ukraine, to “do him a favor” and help him win the 2020 election.

The abuse of power is so blatant, obvious and simple in this case — Trump attempted to trade military aid for an investigation into his Democratic rival, Joe Biden — that an impeachment inquiry in the House of Representatives needed only two months to establish the facts.

Besides trying to muddy the waters by turning this into yet another “deep state” conspiracy, Trump and his allies have attacked the very legitimacy of the impeachment inquiry.

Trump’s lawyers and staff have refused to answer congressional subpoenas. Trump has instructed his top aides — White House chief of staff Mick Mulvaney, Secretary of State Mike Pompeo and Vice President Mike Pence — to refuse to appear before the House inquiry, only for his lawyers to argue that the absence of their testimony invalidates the inquiry’s findings!

Even though the White House (incredibly) released a rough transcript of the phone call in which Trump asked his Ukrainian counterpart, Volodymyr Zelensky, to investigate the Bidens, and despite evidence from legal scholars (dismissed as biased, left-wing professors by the right) that this is exactly what impeachment is for, fewer than one in two Americans support impeachment and Trump’s approval rating is an unmovable 42 percent.

Constitutional hardball

Trump refusing to comply with congressional subpoenas is an example of constitutional hardball: violating norms and traditions and testing, and indeed stretching, the limits of the law to achieve maximum partisan advantage.

Rather than allow Trump to bog down his impeachment in the courts, Democrats are moving ahead, in fact making obstruction of Congress one of the impeachable charges against him. But a precedent has now been set. Even Richard Nixon eventually handed over his tapes.

Impeachment is likely to succeed in the House, where a simple majority is required. But conviction in the Senate takes two thirds of the votes and the Republican leader there, Mitch McConnell, has already announced he will work “in total coordination with the White House counsel” to end the trial, and acquit the president, as swiftly as possible — quite possibly in violations of the juror’s oath senators will be required to swear before hearing the evidence.

McConnell has done more to weaken political norms in Washington than anyone.

When then-President Barack Obama told him in late 2016 that Russia was trying to influence the election, hoping they could condemn it jointly and warn the American people, the Republican called the veracity of the intelligence into question and refused to join a bipartisan statement. McConnell went so far as to tell the president he would treat a statement without Republican support as an act of partisan politics. Obama never did speak out.

Paul Waldman has argued that Republicans decided some time ago that there are rules and there are norms and that while rules need to be followed, norms can be torn down whenever doing so advances their political goals.

McConnell doubled use of the filibuster — designed to allow individual senators to merely delay legislation — under Obama to block laws that had majority, but not two-thirds, support. He turned pro forma votes to raise the debt ceiling into crises of America’s creditworthiness. He refused to confirm or even hear from nominees to dozens of diplomatic, judicial and lower-agency vacancies, most notoriously the Supreme Court seat vacated when Antonin Scalia died in 2016.

As a result of McConnell’s unprecedented obstructionism, Trump has been able to appoint an unusually high number of appellate judges in his first term (48 in three years compared to 55 in Obama’s eight), significantly pushing the appeals courts to the right — which, as a result of the deadlock in Congress, is increasingly where law is made.

In a final blow to tradition and forbearance, Republicans eliminated the very filibuster they weaponized under Obama to put Neil Gorsuch and Brett Kavanaugh on the Supreme Court despite almost unanimous Democratic opposition. (Three Democrats voted for Gorsuch, one for Kavanaugh.)

Why?

Ezra Klein believes conservatives, especially Christian conservatives, fear they are losing the culture war to the secular left and see Trump as their last best hope.

There is something to this. Democrats are what Ronald Brownstein has described as a “coalition of transformation”: minorities, millennials, college-educated and secular whites, mostly living in the cities, who are unhappy with the cultural and economic status quo.

Republicans, predominantly white, older and rural, are uncomfortable with the cultural and economic forces that are reshaping American life. Brownstein calls theirs a “coalition of restoration”.

Neither side believes it is winning, but only Republicans believe time is not on their side.

Republicans are in power because America’s electoral system gives a bonus to the areas where their voters live (and because they have milked that advantage by gerrymandering congressional districts). The Electoral College and the Senate give sparsely populated states in the interior of the United States relatively more power than densely populated states on the coasts. That is how Trump was able to win the election with three million fewer votes than Hillary Clinton.

At some point, that built-in advantage won’t be enough to fend off a growing popular majority and Republicans will have only the courts to defend their positions on issues like abortion, guns, health care and labor relations. Hence their willingness to subvert norms, and hence their lack of forbearance. You don’t worry about how your own methods might be used against you tomorrow if you don’t believe there will be a tomorrow. Après Trump, le déluge.

Why it is so bad

It is bad enough to convince half the voting population that the media and science can’t be trusted.

It’s worse when a two-party system sorts voters into opposing camps of roughly equal size which cannot see eye to eye on almost anything, forcing the courts to arbitrate, which, as Megan McArdle has pointed out, needlessly federalizes issues, when devolution is what keeps a big and diverse country like the United States running, and radicalizes those on the losing end of judicial decisions if they feel they have no democratic recourse.

That, in turn, undermines the legitimacy of the courts. Once the Supreme Court becomes a “Republican Court”, and makes decision after decision, on everything from campaign finance to voting rights, that goes against the majority of the American people, it will only be a matter of time before some Democrats stop listening to it.

Worst of all, Republicans are deliberately eroding trust in the agencies that are tasked with enforcing the courts’ decisions: the Justice Department and the FBI.

This is a recipe for disaster.


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