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"Our institutions will save us from Donald Trump; there is nothing to worry about."
"Our institutions may save us from Donald Trump, but we must be watchful, we must hold our institutions accountable, and we must safeguard them so that they can perform their prophylactic function."
"Our institutions can only save us from Trump if we act strongly to increase their power, being militant and uncompromising in so doing."
"We’re fucked; our institutions cannot save us, for they have been hopelessly and irredeemably corrupted by Donald Trump."
These four soundbites essentially sum up the current range of prevailing opinion about the capacity of the United States and her public institutions of civil society to stand up to the existential menace that is Donald Trump.
The view that we have nothing to worry about, that our institutions will save us from Donald Trump, strikes one as unduly optimistic, given the cultlike mentality of many Trump supporters.
By the same token, the view that we are essentially fucked, and that our institutions cannot save us from a Trump-induced slide into fascism, strikes one as being more despairing than is warranted by the current situation.
A few months ago, we might have been right to adopt such a despairing view. We had been warned by such formidable journalists and commentators as the Russian American Masha Gessen, author of The Man without a Face, a well-received biography of Vladimir Vladimirovich Putin, that, essentially, all was lost. Trump, Gessen assured us, would encounter little if any difficulty in corrupting our public institutions of civil society and self-government.
Gessen warned us that the election of Donald Trump portended an all-but-ineluctable slide into fascism. Yet, as the Trump administration slouches past the 200 day mark (curious that we should be counting the days of the Trump administration as if they were the 900 days of the Siege of Leningrad), the trend that seems to be emerging is not of an ineluctable surrender to the fascism represented by the Mussolini wannabe in the White House, but of a Madisonian battle among competing centers of power. Madison’s theory that tyranny would be checked in the United States by the competing, territorial ambitions of separate power centers within the government seems to be experiencing a strong reaffirmation of its basic viability.
For despite the way the presidency has taken on many of the attributes of Byzantine Emperorship, in which the head of state moves in a bubble, less a man than a jeweled effigy onto which a divided people a project whatever inconsistent expectations they see fit, the presidency still remains largely what Madison and the framers of the Constitution intended it should be, a temporary chiefship of one branch of the government, accountable and answerable to the sovereign people referenced in the very first words of the preamble to the Constitution, and more immediately, to the coequal branches of government mentioned in, and deriving their authority equally from that selfsame Constitution.
The Constitution was written in the expectation that competing and conflicting centers of power within the government would act to limit one another. Indeed, our entire constitutional theory can arguably be summed up in the phrase “checks and balances.”
Yet, if Madison and the other framers envisioned those checks and balances as a functioning within the initial textual confines of the three branches of government described and prescribed in the Constitution, they may have nonetheless builded better than they knew. It is almost inconceivable that Madison and the other framers could not have had the prescience to realize that many of the checks and balances they had envisaged would come not only from the clash of competences all three coequal and territorial branches of government, but also from within those individual branches of government themselves.
When, during the Watergate imbroglio, Richard Nixon sought to set the CIA and the FBI at odds against one another, Nixon, a clever California lawyer, realized that the executive branch itself might well have given rise to a whole series of conflicting power centers. As we face a worse crisis than Watergate, in which the evidence seems to be accumulating that we truly have a Manchurian candidate President in the White House, we see the same kind of conflicting power structures and power centers emerging once again within the executive branch.
Certainly, the intelligence community, which in the past has so often been at war with itself, seems to be finding a kind of common ground against the Russophile Manchurian candidate in the White House. Nearly a year and a half ago, when Donald Trump’s candidacy for president seemed like a bizarre a long shot, a piece of guerrilla theater designed to boost The Donald’s ratings on NBC, I predicted elsewhere in this blog that if The Donald got out of hand, and that if The Donald managed to alienate the intelligence community, he might well pay a heavy price therefor.
Now, with The Donald having gone out of his way to insult and piss off America’s seventeen intelligence gathering agencies, and with a full on investigation being undertaken by special counsel Robert Mueller, it becomes easy to perceive the existence of an all-out conflict between the executive and a considerable part of the executive branch itself.
As much as the executive seems to be imposing its own internal checks and balances on Gospodin Prezidyent Shitgibbon Trumpov, the Congress also seems to be awakening to its critical duties of oversight and institutional accountability. Though we saw California Republican Congressman Devin Nunes stoop very close to treason by attempting to interfere with investigatory work of the House Intelligence Committee of which he was chairman, our public institutions — of which Ms. Maria Alexandrovna Gessen was perhaps more ready to despair than she should have been— of self-government rallied firmly against what Nunes was trying to do. Nunes has since been obliged to recuse himself as chair of House Intelligence.
On the other side of the capitol, the Senate Intelligence Committee, chaired by North Carolina Republican Richard Burr, and vice chaired by Virginia Democrat Mark Warner, and on which both of our powerful California women, Dianne Feinstein and Kamala Harris, sit, took a lesson from Devon Nunez’s misconduct and chose to proceed in a far more upright and bipartisan manner. Both committees are also working to avoid stepping on each other’s toes, or on the toes of the investigation undertaken by special counsel Mueller.
Yesterday, we learned that FBI agents executed a search warrant, on July 26, apparently issuing out of the Northern District of Virginia (the traditional go-to jurisdiction for national security cases), on the Alexandria, Virginia residence of former Trump campaign manager Paul Manafort. All this despite the increasingly desperate efforts of Gospodin Prezidyent Shitgibbon Trumpov to prevent the investigation into his, and his campaign’s, collusion with the Russian State from proceeding any further.
So, pace Masha Gessen, at the moment the public institutions of self-government and civil society upon which we rely to impose checks and balances and to prevent a lawless president from becoming a dictator seem, at the moment, to be performing their prophylactic and disinfectant function. For, as Justice Louis D. Brandeis famously observed: “"Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."
Brandeis’s dictum is as applicable to government misconduct as to any misconduct which may occur in the private sector. And as long as there exist strong, Madisonian, public institutions of self-government possessing the confidence and, let us shame the devil and tell the truth, the institutional ego, and the testicular fortitude to shine bright lights into the dark corners of governmental and political misconduct, we may still be cautiously optimistic that our institutions can save us, if we are prepared to hold them accountable, to give them the tools they need to perform their prophylactic function, and as long as we ourselves are militant in demanding accountability.
For there is no doubt that Donald Trump is an evil man, set, if he can get away with it, on undermining the foundations of American civil society, on destroying the credibility of our civic institutions and of our public institutions of self-government. We cannot permit this to happen. It must be prevented by any means necessary.
As a City Councilman, I believed absolutely that the most important requisite for success at any level of government was to ensure that the public could and did have confidence in the integrity of the process not only by which policy was developed and implemented, but also by which the body politic itself was governed by the people’s representatives.
We may thus dare hope that Maria Alexandrovna is wrong, and that our civil society and our public institutions of self-government will stand up to gospodin prezidyent Shitgibbon Trumpov, that they will bring him down, and, to riff on Abraham Lincoln, that this nation, under God, conceived in liberty and dedicated to the proposition that all are created equal, will have a new birth of freedom, and correct and honorable government of the people, by the people, and for the people, shall not perish from the earth.
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Paul S. Marchand is an attorney who lives and practices in Cathedral City, California. He served two terms on the city Council there. He is an unapologetic Hillary Clinton liberal Democrat. The views herein are not intended, and should not be construed as, legal advice. Of course, the views herein are entirely his own.
