Trump’s aggressive claim that the president is the law is entirely new and is quickly being imposed on the electorate. Perhaps, in this short period, voters are waiting and watching. Trump and his allies may not realize that they are testing – and perhaps will not be able to triumph over – the American tradition of anti-government. After all, they are the government now.
By Bob BAUER
As President Donald Trump continues his relentless assault on democratic laws and norms, the question for many is: What will change the course of events? One can imagine that the conditions are ripe for a major scandal—a serious wrongdoing, previously hidden but then revealed, so outrageous and so out of line that it would mobilize even those on the other side of the political spectrum. In the past, scandal served precisely this function. The revelation of serious abuses of power by officials, which is the essence of scandals, created space for reform. As bad as these scandals were—and they were often very serious—they contained within them the seeds of change. But today, traditional scandals are increasingly difficult to realize.
Watergate is in many ways the classic example of a scandal and its reformative potential. It contained everything: covert and illegal actions by a president in violation of laws and regulations, the discovery of these scandalous activities, and, ultimately, a bipartisan agreement on corrective measures and reforms. These reforms included regulations on political financing, protections against the misuse of the surveillance power to spy on American citizens, and the creation of authority for independent investigations into possible criminal wrongdoing by the executive branch.
This cycle of scandal and bipartisan reform is almost unimaginable today. In the Trump administration, what might have been considered a scandal in another era, in another presidency, is actually a governing program.
Elements of this program—“radical constitutional” claims to presidential power, the use of the White House to direct investigations of political opponents, the abandonment of restrictions on personal benefits from office—have been openly proclaimed and are being pursued. What was hidden and revealed during the Richard Nixon years is now presented in the Trump era as a display of presidential resolve and the legitimization of an electoral mandate. Nixon had resigned and left office before telling a reporter that, by definition, no presidential action can break the law. Trump has been expressing the same position—that a president cannot break the law if he is trying to save the country—since the first weeks of his second term. He is redefining the presidency, reframing the expectations for the office.
The death of scandal is a blow to the mechanisms of protection of a democracy. In addition to being periodically useful in exposing corruption, scandal is an essential element of liberal democracy. As sociologist John Thompson writes, it is arguably “more common [in these systems] than in authoritarian regimes, or in single-party states.”
This is because, in a democracy, scandal is only possible thanks to strong electoral competition, a free press, and protections against retaliation that media organizations, political opposition, and others have who denounce and often expose the corruption of the ruling government.
But when democratic norms are damaged or broken, scandal collapses with them. In this way, the disappearance of scandal is both a cause and a consequence of the decline of democracy: it makes reform more difficult and exposes the erosion of the conditions that made it possible to uncover it in the first place. Trump is directly attacking those conditions. He is continuing and, in some cases, intensifying his lawsuits against media organizations. He has fired the inspectors general who serve as “watchdogs” at 17 executive branch agencies. Trump has also fired the head of the Office of Special Counsel, whose duties include enforcing whistleblower protection laws, and replaced him with a former Republican congressman who is also the Secretary of Veterans Affairs—effectively turning him into a part-time position. He is exploiting a divided and polarized media environment to create alternative realities, making it very difficult for a common narrative about any scandal to form and spread. A clear example of this is the re-dimensioning of the attack on Congress on January 6, which he has called “a day of love,” pardoning most of those convicted for their involvement.
The corrective force of the scandal had already weakened during Trump’s first term. In those years, he made no secret of his desire to personally benefit from office and tried to control the Justice Department for his own personal and political purposes – although not to the extent we see today. These and other actions from that period caused great controversy and led to two impeachment proceedings, but neither of them involved revelations about actions he denied.
He called the call with the president of Ukraine, which was at the center of his first impeachment process, “perfect,” while in the second, his rally and video communications regarding the attack on Congress were completely public. After Trump left office, a host of reforms were proposed to limit his version of the presidency, but none of them were approved.
Even when a scandal does not lead to legal reform, it can serve to reinvigorate weakened norms. An example that may seem far-fetched today is the outrage caused by the firing of nine federal prosecutors during the George W. Bush administration midway through his term. The firings were public, but the motive had elements of scandal: it emerged that the White House had been deeply involved in the firings, acting on concerns that these officials were not sufficiently committed to fighting so-called “election fraud” by the Democratic Party. The attorney general denied any questionable motive and acknowledged that “it would be unacceptable to fire a prosecutor to influence or complicate a specific case for partisan political gain.” However, the Department of Justice’s Office of Inspector General and the Office of Professional Responsibility reviewed the case and concluded that “the dismissal of the prosecutors and the controversy it generated seriously damaged the Department’s credibility and cast doubt on the integrity of its prosecution decisions.”
The Office of the Inspector General also assessed that there was “significant evidence that partisan political considerations had been a significant factor” in these dismissals and that Justice Department officials had “a responsibility to ensure that decisions to prosecute were based on the law, evidence, and Department policy, and not on political pressure.”
Partly as a result of this scandal, Attorney General Alberto Gonzales resigned. But that was not all. A special counsel was appointed to review whether these dismissals violated any criminal law. Her conclusion was that there had been no violation of the law, but that the law prohibited some forms of political interference in the administration of justice. She also affirmed the Justice Department’s principles against “undue political influence.” The Obama administration briefed Congress on these findings and made this point forcefully: Its attorney general was committed to “ensuring that partisan political considerations play no role in the Department’s law enforcement decisions.”
There is little reason to imagine that we will see a “scandal” related to “excessive sensitivity to politics” in this presidency. The norms at the center of the federal prosecutors’ scandal are no longer even formally respected, because their violation has become state policy.
As lawyer Jack Goldsmith (and my collaborator on the Executive Functions newsletter on Substack) has pointed out, the Trump White House’s stated policy of avoiding “‘the appearance of improper political influence’ in law enforcement” is doublespeak that in reality justifies heavy political influence over the judiciary.
High-ranking officials, including the federal prosecutor in Washington, D.C., the director of the FBI and its newly appointed deputy director, have seemed eager to investigate those involved in the investigation into Donald Trump. In this environment, there seems to be only one possibility for a scandal in the old style: the role of Elon Musk. In this case, some of the elements of a classic scandal are present. A businessman, positioned both inside and outside the government, has been endowed with apparent but ill-defined authority. It is never clear whether Musk is speaking on behalf of himself, his businesses or the government. The administration has given different versions of his role at the Department of Government Efficiency. Musk himself has made an extraordinary claim, suggesting that voters are, at least indirectly, the source of his authority. Last month, he retweeted a post on X (formerly Twitter) that read: “Democrats keep saying ‘Nobody elected Elon Musk.’ Yes, we did. Elon was very present with Trump and we elected Trump to use Elon.”
Polls show that even among Republicans, Musk remains a controversial figure. It is not impossible to imagine that at some point a reform will be undertaken to impose limits, or at least more accountability and transparency, on how a president can use a private citizen to take on major government functions.
Perhaps the prospect for reform, even without the impetus of a scandal, will become more likely if the administration fails to address the issues that most concern ordinary voters and if they become less tolerant of “long live the king” presidential leadership.
Monarchical aspirations may fail in the face of the price of eggs and bacon. They may also clash with a defining element of American political culture: the distrust of government, the belief that it is, as historian Garry Wills has written, a “necessary evil, with which we must live but which we always oppose.”
Trump’s aggressive claim that the president is the law is entirely new and is quickly being imposed on the electorate. Perhaps, in this short period, voters are waiting and watching. Trump and his allies may not realize that they are testing – and perhaps will not be able to triumph over – the American tradition of anti-government.
After all, they are the government now.
(Bob Bauer previously served as a White House counsel during the Barack Obama administration)
