The System Works

Happy Independence Day!

With President Trump spending the days leading up to the Fourth of July tweeting an increasingly outlandish and offensive series of insults against members of the Fourth Estate (specifically, Joe Scarborough, Mika Brzezinski, and CNN), I was left to reflect on the wisdom of the Founders. More than two centuries ago, they came up with a system of government that contains, at least to a large extent, even the damage that a personality as protean and disordered as Donald Trump’s can do.

The president may rage against the media—bizarrely, he accuses the mainstream press of being “fake” even as he posts a doctored video from a professional wrestling match, the most artificial entertainment imaginable—but his ability to do anything more than vent on social media is decidedly limited. Thanks, James Madison, for drafting the Bill of Rights and, in particular, the First Amendment that protects our most precious liberties. Trump has talked in the past about changing the libel laws, but that’s not something he can do by executive fiat. It will take an act of Congress, and the odds of such legislation passing are scant even in a Republican-dominated legislature.

In the meantime, the media continue to cover Trump aggressively despite—or perhaps because of—his blow-ups at media organizations and their employees. Trump’s attacks on the press are, if anything, rebounding against him by simply encouraging even tougher coverage on the part of journalists determined to show they are not intimidated. This is not Russia or Venezuela. It does not take any real courage to flay the president in public, even if there is always the risk that some crackpot will be inflamed to violence by the president’s intemperate rhetoric. Thanks to the bedrock protections of the Constitution, the FBI is not going to be rounding up the president’s critics and shipping them off to Alaska.

Trump has been able to do a few things by executive order, such as pulling out of the Trans-Pacific Partnership and the Paris climate accords, but he finds himself stymied, so far, in trying to push through vast changes in the health care and tax systems. That is as is should be: Trump has clearly not thought through what he would like to do in health care beyond “repeal” what his predecessor enacted, and thereby get a legislative “win.” As a result, the legislation is having a hard time moving through Congress. This is the system of checks and balances in operation.

The judiciary has also upheld its responsibilities by limiting the president’s ability to keep refugees or visitors from six Muslim-majority countries out of the country. The Supreme Court has chosen to grant Trump greater leeway, for the time being, than did lower federal courts, but even the Supreme Court has added a large loophole to his travel ban for anyone who has “a credible claim of a bona fide relationship with a person or entity in the United States.” With the judiciary, as with the press, Trump’s attacks may well have backfired. His public pronouncements may have compelled judges to avoid the appearance of giving in to presidential intimidation, even at the risk of indiscretion, like curtailing the president’s considerable authority to set immigration rules.

We have yet to see what impact Trump’s attempts at intimidating the special counsel Robert Mueller will have. So far, the president has had spectacularly little success in closing down the investigation of possible ties between his campaign and the Russian government. He could fire FBI Director James Comey, but he could not stop Comey from testifying before Congress or prevent him calling the president a liar under oath. He can rage against Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein, but he could not prevent Sessions from recusing himself or Rosenstein from appointing Mueller to serve as a special counsel.

Trump may yet decide to fire Mueller, but it will not be easy for him to do so. Even though Mueller is technically an employee of the executive branch, under existing Department of Justice guidelines he cannot be fired directly by the president. If Trump wants to get rid of him, he will in all likelihood need to convince Rosenstein to do so. If Rosenstein refuses, then it will be up to the next person in line—Associate Attorney General Rachel Brand—to uphold the rule of law. Richard Nixon ultimately contributed to his own downfall by firing Special Prosecutor Archibald Cox, and Trump will have to tread carefully to avoid a similar fate.

We take all this for granted, but this is only possible in a republic where the rule of law rather than the rule of one man prevails. And that is thanks to the vision and wisdom of the Founders who created a system that, on the whole, still functions splendidly 241 years later. That is truly something worth celebrating this Fourth of July.