Illegitimacy is defined as “the state of not being in accordance with accepted standards or rules; lack of authorization by the law.” We have crossed some kind of line when serious people on the right start down the path of questioning the “regularity” and “legal soundness” of Trump’s presidency.
Jack Goldsmith is a conservative lawyer and scholar. A fellow of the Hoover Institution and Professor at Harvard Law School, he served as a senior official in the Justice Department under President George W. Bush. A serious man and a leading conservative voice.
In an extraordinary eruption of 17 Tweets yesterday, he wrote “Trump’s actions since January, and especially in [the] last month, take us so far beyond normal that it’s hard to have any faith in [the] Executive Branch.” He argued that the President’s personal actions have undermined the deference that our political culture says we owe to the Presidency and the Executive Branch. “The impulsive, uncontrolled, ill-informed President infects the legal soundless of everything his administration does. As best I can tell, no President’s actions have ever so adversely affected trust in his administration, including Nixon during Watergate.” So we now have a presidency that has deviated so far from accepted standards and rules that it does not deserve even the simple presumption of regularity and legal soundness. In other words, a presidency that has squandered its legitimacy.
This is an extraordinarily consequential analysis. Goldsmith argues that the incessant lying, the manifest instability, the firing of Comey, the intemperate attacks on judges, legal process, long-standing allies, the intelligence services and the press exonerate us from having to afford the office the normal presumption of “regularity.” We – the people, the Congress, the courts, even the lawyers charged with representing him and Executive Branch employees who work for him – no longer need to presume that any of his words or actions are taken in good faith or constitute the regular lawful exercise of Executive Branch authority.
As a result, Goldsmith writes, Executive Branch officials find themselves in a nearly impossible position. Is it morally or legally acceptable to defend Presidential prerogative when the President has proven he cannot wield it responsibly? How far can they go before resignation is their only option?
With Goldsmith’s analysis, we are starting to get a clearer picture of the slowly emerging constitutional crisis. This type of illegitimacy is not anticipated by the constitution. It is not simply incompetence; it is willful incompetence. It is not simply mis-government, it is the systematic undermining of government. It is a profound corruption, where the corrupt spoils are not so much in material gain as in the satisfaction of the ego; where the interests of the nation are traded for the indulgence of the man’s momentary impulse, narcissistic self-image and lust for attention. It is a pervasive and corrosive bad faith, where the crime is not just convenient mendacity, but a willful disdain for expertise and even objective truth. It is disinterest in details. It is disdain for advice. It is failing to take the business of governing seriously. It is a perpetually raised middle finger aimed at our political culture and traditions. At our friends and allies. At the very idea that relations with others can be anything other than a zero-sum transaction. At a world order painstakingly built over generations. It is “the state of not being in accordance with accepted standards or rules.” It is illegitimate.
Trump is no longer a president in any conventional sense. His Tweets and words deserve no more respect than the blather of a reality TV star or the ignorant ranting of a crank. He is viewed as ridiculous by virtually all the rest of the world and by the majority of Americans. In that respect he is no longer a president. He may be the president under law, but he is not a president.
Nothing in our constitution or political culture suggests how to deal with this. Nixon resigned because his confrères in the party told him it was over. Even if today’s Republicans had the same wisdom and courage, he would mostly likely refuse to go. He will hole up and lash out. We must prepare for the constitutional crisis that will follow.