Would Republicans welcome a Democratic authoritarian?
If there's one thing that political analysts of the center-left and center-right agree on, it's that President Trump aspires to govern as an authoritarian.
Even those who partially break from the consensus, like The New York Times' Ross Douthat, concede that Trump has "authoritarian instincts" that he nonetheless fails to act on in a consistent or effective way. In my own partial dissent from the prevailing view, I have described a presidency marked by weak governance paired with great strength in manipulating a segment of right-wing public opinion. Rather than becoming an authoritarian in the present, I've claimed, Trump is laying the groundwork for an autocratic presidency of the future — and he's being aided in this project by members of his party (like Attorney General William Barr) who have begun to advocate for a president unbound by various forms of oversight by Congress and investigation by law enforcement.
But what if even this misstates the true character of what's going on in our politics in 2020? What if the very structure of constitutional argumentation — forcing litigants on both sides of a conflict to make their claims in terms of generalizable principles that apply equally to all parties — leads us to misunderstand the true aims of each side? I'm increasingly convinced that this is the case — and that Trump's troubling actions and the arguments made to justify them are less an expression of support for an authoritarian presidency as such than a confession that growing numbers of Republicans think theirs is the only party in the country capable of exercising legitimate political rule.
That still might mean Republicans are growing enamored with autocratic rule. But it would not be an affinity based on a principled commitment to enhancing the institutional powers of the presidency — powers that presidents of both parties would legitimately get to wield. It would instead be based on weaponized partisanship, with those enhanced powers reserved for Republicans alone.
Consider the arguments made before the Supreme Court earlier this month by Trump's personal lawyer Jay Sekulow in favor of "temporary presidential immunity." With Trump facing three House committees looking to obtain financial records from his business dealings before and during his time in the White House, and subpoenas from a grand jury in New York City seeking similar information, Sekulow claimed that the president should be protected, not only from criminal prosecution but also from criminal investigation while holding the presidency. Sekulow's arguments were aimed primarily at Cyrus Vance, the Manhattan district attorney overseeing the grand jury investigation, but lawyers for the Justice Department made similar arguments focused specifically on the legitimacy of the House investigating wrongdoing of a sitting president as a precursor to possible impeachment.
Is it at all plausible that Sekulow believes that all presidents enjoy immunity from criminal investigation? Just six years ago, when the president was a Democrat, he seemed to be far more concerned to "stop the imperial presidency," to halt the "executive power grab," and to assert that "President Obama isn't a king." It's certain possible that Sekulow's views of executive power have changed dramatically in the intervening years, though I submit it's far more likely that he simply operates with two views of executive power, depending on which party holds the White House.
Now, of course, Trump may well lose at the Supreme Court. We don't yet know how the court's conservative majority will rule on the scope of presidential immunity from criminal investigation. Though we also know that conservative lawyers, very much including the lawyer currently serving as attorney general of the United States, are fond of making arguments about the constraints that Congress has placed on the presidency, "smothering" its "constitutional authority." It would not be at all surprising for several of the high court's conservatives to extend this view to cover immunity from congressional investigations of criminality.
But would this mean that the Supreme Court had moved a few more steps in the direction of transforming the presidency into an autocratic office? Only if the immunity extended to Trump were recognized as legitimate by Republicans in Congress and in the courts the next time the presidency is held by a Democrat — and especially by a Democrat who tests norms intended to restrain corruption at the head of the executive branch.
How likely is such parity in application of principle? Less than zero. If you doubt it, think back to the contempt in which Presidents Clinton and Obama were held by congressional Republicans. Or the string of investigations to which they were subjected throughout their time in office. Or the vitriol that Trump and the conservative media establishment hurl constantly at Democrats even when they control just one of two houses of one branch of the federal government.
Or ponder Trump's firings of a string of executive branch inspectors general in the months since his impeachment acquittal. This is the president all but declaring that he will no longer permit legal oversight of himself or members of his Cabinet by independent investigators. From now on, he and his administration will simply do whatever they want. How has his party responded? Aside from some modest grumbling from Sens. Mitt Romney of Utah, Susan Collins of Maine, and Chuck Grassley of Iowa, Republicans have said little about these actions. The chance that they would react with the same wan unconcern to such an egregious flouting of independent oversight by a Democratic president is patently ludicrous.
Call it situational authoritarianism — or the substitution of tribalistic partisanship for constitutionalism. Either way, it's an illustration of the Republican Party's evolution away from the fundamental liberal presumption that both parties in our politics need to accept democratic accountability — and toward a system in which Republicans get to enjoy power and legitimacy they have no intention of extending to their political opponents.
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