This Is Not a “Constitutional Crisis”

A constitutional crisis, like a good first date, is typically self-evident. That’s what makes top Democrats’ sudden embrace of the term so jarring. “Certainly, it’s a constitutional crisis, although I don’t like to use that phrase because it’s been used for far less dangerous situations,” Jerry Nadler, the chairman of the House Judiciary Committee, said on CNN last week, pointing to President Donald Trump’s refusal to comply with any congressional subpoenas. House Speaker Nancy Pelosi quickly concurred, as did some Democratic presidential candidates, like Kamala Harris.

Conservatives quickly rose to the president’s defense, accusing liberals of hyperbole. “Mrs. Pelosi and House Democrats refuse even to begin a formal impeachment inquiry,” The Wall Street Journal’s editorial board wrote. “If Mr. Trump is so disrespectful of the Constitution, and so in violation of the separation of powers, what are they waiting for?” Trump himself, who never misses a chance to cynically strip the meaning from any phrase used against him, denied that there was a constitutional crisis and then insisted he was the victim of one launched by Democrats.

This is a largely academic question. Trump’s fate won’t be determined by whether his actions amount to a “constitutional crisis” or not. If anything, the persistent use of the phrase says more about how Trump’s opponents understand him. It’s not just that the president is testing the Constitution’s limits. It’s also that, in some cases, the constitutional system itself is enabling his worst tendencies.

As Vox’s Dylan Matthews noted two years ago, there’s already a sizable body of legal analysis on what does and doesn’t count as a constitutional crisis. Keith Whittington, a Princeton University political scientist, wrote in 2002 that there are “fidelity crises,” where political actors threaten to act outside the Constitution’s bounds, and “operational crises,” where the Constitution’s structure could not resolve a dispute. In other words, a constitutional crisis is when either someone fails the Constitution or the Constitution fails us. Other scholars have outlined concepts like “constitutional hardball” and “constitutional showdowns” to describe scenarios where American governance gets messy without getting truly dangerous.

Some constitutional crises are obvious, like when the Southern states tried to leave the Union after Abraham Lincoln won the presidency in 1860. (The Supreme Court later ruled that states can’t unilaterally secede, though the Union Army had already decided the question.) Others may only be apparent in hindsight. When Woodrow Wilson suffered a debilitating stroke in 1919, the Constitution had no clear mechanism to bypass a disabled president who refused to resign. Historians now believe that First Lady Edith Wilson effectively ran the country in his stead for the rest of his second term—perhaps the closest the United States has come to a coup d’etat.

American history is also full of near-misses where the system eventually worked things out. The disputed presidential election of 1876 was resolved when Republicans and Democrats struck a deal: Republican Rutherford B. Hayes would be declared winner, but would agree to withdraw federal troops from the South, effectively ending Reconstruction. During the Korean War, General Douglas MacArthur publicly criticized President Harry Truman for refusing to allow him to bomb China; Truman reasserted civilian control of the military by firing him. And in 1974, the Supreme Court crafted a unanimous ruling in the Watergate tapes case out of fear that Richard Nixon would use any dissents to justify ignoring the court.

Trump’s blanket refusal to comply with legitimate congressional subpoenas is petty and disingenuous, of course. But it doesn’t rise to the level of a constitutional crisis. Presidents regularly scuffle with Congress over the scope of its oversight powers, and the courts occasionally step in to resolve things when the other two branches fail to. If Trump eventually refuses to comply with a Supreme Court ruling that forces him to turn over his tax returns, then we’re firmly beyond the red line. Until then, the damage to America’s constitutional order is more speculative than substantive.

What exactly are we living through right now, then? In The Atlantic last year, Lawfare’s Quinta Jurecic and Benjamin Wittes argued that the Trump era is better understood as “constitutional rot” rather than a crisis per se. “Constitutional rot is what happens ... when faith in the key commitments of the Constitution gradually erode, even when the legal structures remain in place,” they wrote. “Constitutional rot is what happens when decision-makers abide by the empty text of the Constitution without fidelity to its underlying principles. It’s also what happens when all this takes place and the public either doesn’t realize—or doesn’t care.”

This line of thinking comes closest to understanding Trump’s corrosive approach to governance. But it also misses the extent to which the president isn’t chafing at the constitutional order, but operating within it. “Trump can whine and he can fire senior FBI officials, but he has been singularly ineffective either in getting the bureau to investigate his political opponents (they have not yet ‘locked her up’) or in dropping the Russia investigation, which continues to his apparent endless frustration,” Jurecic and Wittes wrote. “If this is constitutional rot, it’s inspiring a surge of public commitment to underlying democratic ideals—including the independence of law enforcement.”

While that may have accurately described the state of affairs in March 2018, the Justice Department’s independence is no longer what it was then. After Trump fired Attorney General Jeff Sessions in November, he temporarily installed Matthew Whitaker, who reportedly told associates his job was to “jump on a grenade” for the president. Then, in February, the Senate confirmed Bill Barr as Sessions’s permanent replacement, and he worked tirelessly to cast special counsel Robert Mueller’s damning findings in the most favorable possible light for Trump. In recent weeks, the president and his allies began openly pressuring the Justice Department to launch an investigation into Joe Biden, the Democratic frontrunner, whom Trump appears to perceive as his greatest political threat.

The problem here isn’t just that Trump wants to weaponize federal law enforcement against his enemies; it’s that it wouldn’t be a constitutional crisis, precisely, for him to do so, because it would be legal to some extent. According to longstanding Justice Department guidelines, a sitting president can’t be indicted. Barr told Congress last month that the president can lawfully shut down federal investigations into his associates, so long as the president believes the investigations were based on false accusations. He can dangle pardons in front of potential cooperating witnesses so long as he doesn’t make it too explicit. And he can invoke executive privilege to keep damaging documents and testimony away from Congress.

In theory, Congress could pass new laws to constrain the executive branch’s power. But the president can hamstring those efforts so long as his supporters control at least one chamber of the legislature—and even if he loses both the House and the Senate, he can still veto any legislation so long as one-third of one chamber supports him. Even if lawmakers somehow meet that extraordinary threshold to constrain a rogue president, they’d still have to run the law itself past a Supreme Court that seems eager to defer to even the most bad-faith justifications that conservatives feed them.

A constitutional crisis almost sounds refreshing by comparison. It would be comforting, in a way, to think that Trump’s abuses of power are violating the constitutional boundaries that define our republic and its character. Instead, what’s happening all too often is that Trump is not working against the system, but well within it.