Resistance (At All Costs)

by Kimberley Strassel

  Trump has also provided Resistance leaders new avenues for going after long-hated targets. In March 2019, The New Yorker’s Jane Mayer, infamous among liberal attack journalists, penned an 11,000-word screed against Rupert Murdoch and Fox News. [Disclaimer: Murdoch owns the WSJ.] There is nothing new in the left bashing conservative media outlets or bashing their owners. But Mayer had a new hook for her hit piece: Her article claimed Fox News served as “Trump TV,” and her piece sought to explain how Fox had devolved from simply being “partisan” to instead being a full-time “propaganda” outlet for the Trump autocracy.

  Finally, casting Trump as a dictator or racist or homophobe gives Resistance leaders cover to engage in behavior that would never have been tolerated in political times past. They accuse Supreme Court nominees of rape. They break Senate committee rules. They breach government regulations and even statutes (see all those leaks of classified information). They spend two years telling us to wait for the results of special counsel Bob Mueller’s report, then ignore the results of Bob Mueller’s report. There is no excuse for this behavior, but the Resistance justifies it as a required response to Trump, and the media gives the Resistance a pass.

  What makes this behavior particularly despicable is that the leaders of the Resistance know better. They know politics; it is their daily bread and butter. They know their history, they know their Constitution, and they know their facts. And yet they are willing to twist and distort the truth, and ignore the rules, in order to benefit.

  It’s that mentality that differentiates the Resistance from prior political movements. America has had a lot of presidential elections, and each one has produced a losing side. Traditionally, the vanquished spend the ensuing years regrouping, opposing, and coming up with a better message. The Resistance from the start was instead about delegitimizing Trump, mobilizing the machinery of the government against him, and using any other means available to void the results of 2016. That zero-sum mentality all but guaranteed that the Resistance would immediately start taking out some of America’s norms and institutions.

  Chapter 2

  About That Autocrat

  It’s a scary thing when a president rules by executive order, ignores the law, threatens the fifty states, trains the federal bureaucracy on political opponents, and politicizes justice. And indeed, that Barack Obama dude was one scary president.

  Donald Trump, not so much.

  The most consistent and aggressive criticism of Trump is that he is a threat to American democracy—a budding autocrat who is destroying our most basic values and institutions. “Will American Democracy Survive Trump?” asked David Frum in The Atlantic. “America Is Slouching Toward Autocracy,” warned the Washington Post’s E. J. Dionne. “2018: The Year of the Autocrat,” declared the Guardian newspaper, lumping Trump in its lead paragraph along with Russia’s Vladimir Putin and China’s Xi Jinping.

  Hitler, Stalin, Mao, King George, Genghis Khan, Kim Jong-un—Trump has been compared to them all. The more chilling predictions were, of course, always absurd. No, Trump never mobilized his own junta (“The Creeping Militarization of Donald Trump’s Cabinet”—Time, December 2016). The 2018 midterm election came and went and saw Nancy Pelosi elected as Democratic House Speaker; Trump didn’t send the Secret Service to steal her gavel. No, Trump has not brought on World War III (“How Trump Could Trigger Armageddon with a Tweet”—Wired, September 2018). And no, Trump is not going to crown himself permanent leader (“Could Donald Trump Refuse to Leave Office When His Presidency Is Up?”—New Statesman, March 2018). He may inflict upon the nation an epic good-bye tour, but that’s hardly a crime. See Bill Clinton.

  The claims that have gained the most currency instead center on Trump’s supposed abuses of power or his annihilation of democratic institutions. Before he was even inaugurated, Trump haters warned that he’d rule through fiat, abolish or neuter the courts, overrule Congress, mobilize the Justice Department against his enemies, shut down the press, and spy on his political enemies. Any number of these are felonies and impeachable offenses, and they are serious charges to lodge against a man who had yet to even measure curtains for the Oval Office.

  They got away with the accusations partly because of Trump’s style. The 45th president has no real filter. A lot of Americans, sick of the usual political spin and polish, admire him for it. Brainstorming is also valued in the business world, where Trump spent most of his adult life. CEOs throw out big, grand ideas, then wait for advisers to explain why a proposal won’t work. But it’s far riskier behavior for politicians, whose words and ideas are measured against highly complex law or policy. And Trump’s think-out-loud statements are rarely vetted for legality, practicality, or conventionality.

  Trump the candidate was particularly prone to produce spur-of-the-moment proposals, giving his opponents their opening to start the “autocrat” meme. An excellent example were his musings on foreign Muslims entering the country. In response to the 2015 San Bernardino shooting—in which two radicalized Muslims killed fourteen people—Trump called for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on.” In a subsequent interview, Trump said this might require customs agents and border guards to ask every entrant about their religion—since such information isn’t on passports.

  He also said that the details “would have to be worked out”—acknowledging these were just thoughts. And in May 2016 he again noted the ban was “just a suggestion.” According to former New York Mayor Rudy Giuliani, Trump early on asked advisers to look into “the right way to do it legally.” By June he had explained the ban would apply geographically—not religiously—and only to countries with a “proven history of terrorism against the United States.” And the final iteration of his travel ban—a presidential proclamation that suspended entry of certain citizens from a handful of terrorist-tied countries—was ruled constitutional by the Supreme Court.

  But the damage was done. From the moment the candidate uttered his first thoughts through to the Supreme Court ruling, the ban was spun as a straight-up, discriminatory attack on the Muslim religion. The haters completely ignored Trump’s terrorism argument. The ban was equated—despite wildly differing scenarios—to America’s internment of Japanese Americans during World War II. The press warned that Trump would soon strip even Muslim-Americans of their rights. Years on, of course, this has not happened.

  Or take the case of Gonzalo Curiel, the federal judge who in 2016 oversaw a class action suit against Trump University. Trump felt the judge’s rulings were unfair and took to lambasting Curiel, even at one point suggesting the “Mexican” Curiel was biased against Trump because of his plans to build a wall. (Curiel was born in Indiana.)

  The roasting of federal judges is hardly new. President Barack Obama slammed the Supreme Court over its Citizens United decision during his 2010 State of the Union Address. Republicans smacked around Chief Justice John Roberts for upholding Obamacare. But Trump’s particularly pointed criticism allowed haters to spin his words as an unprecedented attack on an “independent judiciary” and proof that a President Trump would trample the Constitution’s separation of powers. “Trump’s personal, racially tinged attacks on federal judge alarm legal experts,” explained the Washington Post on June 1, 2016. The article admitted that politicians criticize judges, but nonetheless insisted (with no real evidence) that Trump’s attack was somehow terrifyingly different. His “vendetta signals a remarkable disregard for judicial independence” and carried “constitutional implications” if he won the election. But yet again, years into the Trump presidency, he has yet to disobey a single judicial order.

  And, of course, nothing has dogged President Trump more than his impromptu remarks to Jim Comey about the FBI director’s Russia probe, which the haters would ultimately use to initiate an entire special counsel probe into the Trump campaign, which dragged on for years. Much more on that later.

  No question,
Trump is impromptu. And no question he has changed the nature of the office of the presidency—in particularly disconcerting ways. He can be rude and brazen. Even his supporters sometimes wish someone would take away his phone. He’s not too fussed with facts or consistency, which allows the press to pounce on his “lies.” All these traits are among the reasons an October 2018 Wall Street Journal–NBC poll found that while nearly 44 percent of voters approved of his policies, nearly half of those people disliked him personally.

  This is nonetheless personal behavior, limited to one of the more unusual figures to ever hold the U.S. presidency. At some point, Trump will leave office (yes, he will leave), and America will once again get a polished and polite (if potentially boring by comparison) president again. So the question becomes: Where will be the structural damage? Words are not the same as actions. The deceit the Trump haters have practiced all along has been to claim that Trump’s mannerisms will result in the destruction of law, institutions, and democracy. There is no real evidence.

  Quite the opposite. Any fair appraisal of the Trump administration will conclude that it has proven one of the more rule-bound and principled in modern history, at least in terms of the actual running of government. This fidelity to law and rules is, in fact, among the top reasons Trump voters so passionately support him. And it is why those same voters have such searing distrust of a media that constantly suggests otherwise.

  Nor should this law-and-order reality come as a surprise to anyone willing to suspend the hysterics. The craziest predictions, that Trump would destroy democracy, were never realistic—if only because of structural safeguards. The Founding Fathers were highly aware that men are mere mortals. They’d risked their lives to get out from under a tyrant and specifically designed the Constitution and its checks and balances to guard against another. That Trump junta? Good luck when war powers are divided between the executive and the legislative branches. Trump stripping entire classes of citizens of basic freedoms? The Supreme Court would knock that down in a nanosecond. Trump brazenly refusing to abide by such a Supreme Court order? Even a Republican Congress would move to impeach.

  There’s also the obvious point that Trump isn’t unhinged, as the haters claim. The 45th president tends to respond to situations with gut reactions. And because he makes himself readily accessible to the press, the world sometimes gets these raw, daily, often hourly, thoughts. But the record shows that Trump rarely demands action on unformed ideas. He reacts—then seeks counsel. That might be the opposite order of most presidents, but it still ends the country up at the same place—with considered, legal policies.

  The travel ban is an example, but there are plenty of others. Trump once suggested he’d round up and deport every illegal immigrant; he never did, in light of the overwhelming logistics and legal barriers to such an enormous operation. Angry over unfair press coverage in the campaign, Trump vowed that were he to win, he’d overhaul “libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.” He was at some point advised that there are no federal libel laws—they are issued by states—and nothing happened.

  To the extent Trump has stretched the boundaries of presidential authority, it’s generally been in keeping with prior presidential stretches. That includes his August 2017 pardon of the controversial Arizona Sheriff Joe Arpaio. A federal judge had held Arpaio in criminal contempt for flouting a court order governing his detention of illegal immigrants. The pardon was controversial even among conservatives. The Obama Justice Department had waged a relentless campaign against Arpaio, which many Trump supporters had viewed as unfair and political. They applauded Trump’s intervention. Others wished Trump hadn’t rewarded an official for ignoring a court and the law, and that Trump hadn’t short-circuited the process by pardoning Arpaio before he’d been sentenced.

  Nonetheless, a president’s power to pardon is among the most awesome the Constitution grants, and Trump was within his legal rights to issue the Arpaio pardon. Moreover, name a president who hasn’t issued a controversial pardon or commutation. President Clinton on his last day in office pardoned an international fugitive, Marc Rich, whose wife just happened to be a big Clinton donor. Obama commuted the sentences of both Chelsea Manning (who stole and dispersed American state secrets) and Oscar López Rivera, a violent Puerto Rican terrorist. Gerald Ford, of course, pardoned Nixon.

  Yet despite all this, the press and Trump haters wrapped themselves into pretzel shapes to suggest the Arpaio pardon was unique and, worse, potentially criminal. “Why Trump’s Pardon of Arpaio Follows Law, Yet Challenges It,” wrote the New York Times. Its author, Adam Liptak, in the first paragraph editorialized that the pardon “concerned a crime” that was “particularly ill-suited to clemency” and “was not the product of the care and deliberation that have informed pardons by other presidents.” Whatever. “Arpaio Pardon Flouts Constitution, Ex–White House Officials Say,” blared the Guardian, in a piece that offered no such evidence, even as it claimed Trump was “testing” his powers, gearing up to later pardon any of his people found guilty of Russia collusion.

  One of the other big stretches of Trump’s executive power came in February 2019, when he declared a national emergency at the southern border and used that as a reason to redirect funds to his planned wall. It came at the tail end of a grinding, two-month battle with Congress over border funds that resulted in the longest government shutdown in history. The spending bill Trump ultimately signed to reopen the government didn’t include all the money he wanted for border security. So he invoked the National Emergencies Act of 1976, which allowed him to reroute up to $3.6 billion from other military construction projects to the wall.

  Conservatives again were divided. Congressional critics—in particular military appropriators—were miffed that Trump was swiping funds that might otherwise go to their projects. Some constitutionalists decried the declaration as an assault on Congress’s power over the purse. Yet others worried about the precedent Trump was setting. What was to stop a future Democratic president from declaring a national emergency over climate change or school shootings? These Republican detractors were, of course, joined by the entirety of the Democratic Congress and the press, which labeled the moment a “manufactured crisis” and an assault on the Constitution. “This is plainly a power grab by a disappointed president, who has gone outside the bounds of the law,” declared congressional leaders Chuck Schumer and Nancy Pelosi in a joint statement. “Donald Trump’s Emergency Declaration Is an Attack on Democracy,” ran an opinion headline in USA Today, in which the author, Chris Truax, proclaimed that Trump was ruling “by decree.”

  And yet even a number of Republicans who were uneasy with Trump’s move admitted the legal question was hardly cut-and-dried. The National Emergencies Act is broad, and presidents have invoked it some sixty times, for all manner of crises. Some prior presidents had indeed used it to spend money that Congress hadn’t approved—including after 9/11, when George W. Bush used emergency powers to ignore defense appropriations. A few commentators noted that Congress had chosen a weird time to suddenly get worried about the NEA. “Of the 59 national emergencies declared by presidents since 1979, more than half remain in effect today,” wrote conservative columnist Edward Morrissey in The Week, pointing out that Congress has failed to revoke a single one. “It’s going to be tough for Congress to argue in court that it’s concerned about its constitutional privilege after decades of ignoring it.”

  And then there was the not-small question of whether the mess at the border did in fact count as…an emergency. Nebraska Senator Ben Sasse, one of Trump’s most relentless GOP critics, ultimately voted to uphold the emergency declaration. Why? “We have an obvious crisis at the border—everyone who takes an honest look at the spiking drug and human trafficking numbers knows this,” he said. Sasse reminded everyone that he and other constitutional conservatives had long worked to reform the NEA, which he decried as “overly broad” and ceding too
much congressional “power” to the president. But precisely because nobody had reformed it, Sasse noted, “the President has a legal path.”

  The bigger point is that Trump’s declaration was an uncharted use of executive power, not an assault on democracy. And the orderly process of resolving that legal question is proceeding per usual. Within days of the declaration, advocacy groups ranging from Public Citizen to the ACLU to the Center for Biological Diversity had readied or filed lawsuits challenging it. A coalition of sixteen states sued. The Democratic House sued (in a suit a federal judge threw out in June 2019 for lack of standing). The other claims are currently working through the courts, and at some point the country will have an answer on the limits of national emergency declarations. And the republic will continue to stand.

  * * *

  Finally, there is this glaringly obvious point: Trump and his team have no interest in breaking the law or wrecking institutions or undermining democracy. Quite the opposite. One of candidate Trump’s campaign promises was an end to big, lawless government. That pledge was central to his election, coming as it did at a time when Americans—and conservatives in particular—had grown acutely concerned about presidential excesses.

  All thanks to Barack Obama, who proved to be the most lawless and overreaching president in modern history. Obama’s legislative achievements were almost entirely confined to his first two years in office, when a Democratic Senate and House provided to him his stimulus package, Obamacare, and Dodd-Frank financial regulation. But the 2010 Republican House takeover put an end to the free legislative pass. And rather than compromise or work with Republicans, Obama turned to executive power. “Where they won’t act, I will,” he vowed in 2011. “Wherever and whenever” he would “take steps without legislation.”