Dictator or Cypher, Or . . .?

President Trump speaks during an executive order signing event in Washington, D.C., August 3, 2020. (Jonathan Ernst/Reuters)

I think John Yoo sets up a false choice when he asks rhetorically: “Is Trump a dictator or a cypher?”

It is possible to undermine constitutional and democratic norms without having grand Napoleonic ambitions. For example, President Trump’s bizarre demand for a Treasury kickback payment from Microsoft is typical of the Trump style. It is gross and corrosive, but it is not the kind of thing a would-be dictator does — it is the kind of thing a would-be gangster does.

I will admit to some pretty vigorous eye-rolling at Yoo’s insistence that Trump is a “constitutional traditionalist” engaged in a “defense of the constitutional order” and a “battle for the Constitution,” which seems to me only the obverse of the mistake Yoo attributes to Trump’s critics on the Left: imagining an intellectual framework behind Trump’s actions. The most straightforward interpretation of the available evidence is that Trump is engaged in neither a programmatic defense of any particular vision of the Constitution nor a premeditated assault upon the constitutional order — there is no reason to believe that he has the energy or the intellectual inclination to follow either course of action — but that he simply pursues his own interests as he sees them at any given moment, exactly as he has done for the entirety of his public life. We know from the Roman example (of which the Founding Fathers were acutely aware) that ordinary venality can be as dangerous to a republic as grandiose political ambition; and, as it turns out, in our own case that kind of thing is sufficiently destructive without our having to imagine Trump as an aspiring Caesar. This isn’t an opera, and it does not have to be operatic.

With that in mind, Yoo’s insistence that in toying with the idea of delaying the election Trump “does not implicate any constitutional concerns,” seems to me to be far from self-evidently true. Yoo assures us that things will happen “automatically” in January, but in a democratic republic nothing happens automatically — we rely on republican norms, civic duty, democratic cooperation, and patriotism for the orderly operation of government and the peaceful transfer of power. In raising the possibility of delaying the election, Trump implicitly asserts an extraconstitutional power. Yoo insists that this “does not implicate any constitutional concerns” because Trump does not actually have such a constitutional power; i.e., he argues that Trump’s suggestion raises no constitutional issue because an unconstitutional gambit would be . . . unconstitutional. I think that one would have to attend a very, very good law school to find that persuasive.

I don’t envy anybody the task of trying to reverse-engineer a plausible constitutional rationale around President Trump’s pinball antics. It would be, I think, far easier to simply deal with the fact that there are choices beyond “a dictator or a cypher.” We have to look at our situation straight on and face the actual facts before us.

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