Donald Trump

Here's What a Real Constitutional Crisis Would Look Like

A step-by-step guide to the moves Donald Trump could make that experts say would bring us into truly uncharted territory.

by Mike Pearl; illustrated by Lia Kantrowitz
Jul 27 2017, 7:43pm

Image by Lia Kantrowitz/Andrew Harrer/Bloomberg via Getty Images

America's non-healthcare-related political headlines in recent days have increasingly warned of something called a constitutional crisis. The New Republic even went so far as to call ours a potentially "authoritarian" moment—a grave warning that makes it sound like the very foundations of America are being eroded.

Problem is, it's hard to take all of the hand-wringing too seriously. Ever since he got elected, there's been this idea floating around that Trump is an illegitimate president—and that he should be impeached. All the way back in February, before Trump fired FBI director James Comey and began musing about his ability to issue pardons, the Washington Post suggested a constitutional crisis might be on the horizon.

With this increasingly loud drumbeat serving as the soundtrack to the Trump Show, it's fair to wonder at what point all the forecasting and hype transmogrifies into an urgent danger to the republic.

"Every day is unlike anything we've ever experienced or seen before," Stephen Spaulding, chief of strategy and external affairs for Common Cause, a longtime legal watchdog group based in Washington, DC, told me. This may actually be the moment to freak out, he continued, because overt attempts by Trump to block the investigation into his own potential wrongdoing—Russia-related or otherwise—may "spark a constitutional crisis the likes of which we haven't really seen before."

But that's still pretty vague. If we woke up one day and were no longer being warned of a looming disaster, but reading headlines that said, "Holy shit, what do we do about this constitutional crisis?" What would that actually look like?


Why British People Are Betting on Trump's Impeachment:


What is a "constitutional crisis," anyway?

For starters, America is almost certainly not currently in a constitutional crisis. According to Erwin Chemerinsky, a prominent scholar on the founding document at UC Berkeley, the actual definition is pretty cut and dried: "A constitutional crisis occurs when the Constitution cannot be enforced," he explained in an email.

Dissenting legal minds define this event more liberally, but most seem to agree this is not an accurate description of where America is right now. Harvard legal historian Noah Feldman cautioned against overusing the phrase. "A constitutional crisis needs to be resolved through decisive action by somebody," he told me. In other words, if you claim we're in the middle of a constitutional crisis, you're saying someone in power needs to do something drastic! That might not be a good thing to say at this moment in history. Resolutions vary, Feldman continued. "Sometimes it turns into a bar fight, and sometimes there's a compromise."

So while everything may not be normal in the government these days, what Donald Trump has done so far as president (executive actions going after Muslims and the LGBTQ community possibly excluded) falls within the Constitution's general framework. The healthcare fight is a good example: Trump isn't just tearing up the Affordable Care Act or leaning on sympathetic judges to impose a replacement for him. Instead, as the Constitution demands, he's trying to convince (or bully) lawmakers into repealing—and maybe replacing—it.

On the other hand, if Trump began flagrantly defying the Constitution's limits and kept a hold on his job anyway, that would be "like a Mexican standoff in the movies," Feldman said. Or a situation where no one knows what to do next.

Constitutions, as a rule, don't tend to lay out a definition for what qualifies as a catastrophe. Unlike when your computer's operating system locks up, there's no warning message to clarify that the application has gone to shit. In such a moment, a state just kinda starts sliding off the rails.

This is happening right now in Venezuela

In March, Venezuelan president Nicolás Maduro overrode the power of the National Assembly—his country's Congress—with the help of a friendly Supreme Court. "The government is ruling by fiat," Reggie Thompson, Latin America analyst at the security think tank Stratfor, told me. In other words, Venezuela's constitution is no longer being followed, and there's no clear path back to democracy. "One side says, We need to obey the constitution and enforce it as-is," Thompson explained, while "the other side says we have to rewrite the constitution fully."

Venezuela is also in the middle of a historic economic meltdown, and experiencing a dramatic spike in crime and civil unrest. It's hard to picture a similar level of chaos in the United States. Among other obvious innate differences, the economy here remains relatively strong, and crime is flat, or flat-ish. But with the Republicans completely in charge of the federal government, and a steady erosion of DC norms—a wave of change that began under Barack Obama, if not earlier—it's obviously worth staying vigilant.

That's not because the United States is one false move away from rioting in the streets. On the contrary, constitutional crises tend to creep up slowly. As Thompson said of the Venezuelan case, "The ruling party, over a period of about 18 years that they've been in power, steadily started behaving outside the norms of the constitution to a degree, and started accumulating more power across all institutions in government to the point where they were largely the only party."

America is still nowhere near such a disaster scenario. But things are getting weird around here.

The Russia stuff

Last year, as most Americans know by now, people involved with Trump's campaign had a series of strange interactions with individuals tied to the Russian government. At the same time, the Kremlin appears to have been trying to undermine the campaign of Trump's opponent, Hillary Clinton, while boosting his own political fortune. The ensuing investigation—by both houses of Congress and the FBI—into potential connections between Trump-land and Moscow is open-ended. If his campaign colluded directly and intentionally with a foreign government, that would be an Earth-shattering act of treachery by a US presidential candidate—and possibly some sort of crime.

In May, Trump—a guy who betrayed authoritarian instincts as a candidate, and as president has shown little or no respect for tradition—took the alarming step of firing FBI director James Comey. Among other reasons, that sent shockwaves throughout the country because the president was effectively firing the man investigating his own administration. To make matters more unsettling, after the super shocking firing of Comey, Trump turned around and told Russian foreign minister Sergey Lavrov that axing the guy had taken "great pressure" off him.

Now the Justice Department's investigation is being helmed by former FBI director Robert Mueller. The veteran lawman was not appointed by Attorney General Jeff Sessions, who recused himself from all things election-related. (This pissed Trump off to no end—more on that later.) Instead, by Justice Department rule, Mueller was selected by Deputy Attorney General Rod Rosenstein, who has no dog in this fight. Now, Trump still has the power to fire Mueller—or at least to lean hard on officials like Sessions and Rosenstein to do so. That's one prevailing fear percolating: that Trump might use his power as president to hamper the investigation, or just kill it entirely, leaving the system of checks and balances at the core of the American republic in serious jeopardy.

There are a lot of "ifs" here. But as Spaulding put it, "I just don't think it's too paranoid." The president, he said, "has been sending signals for the past week," indicating that "he has this on his mind—that he's trying to take the pressure off" one way or the other.

Trump could always try to pardon himself

According to a report in the Washington Post on Friday, Trump's legal team has been looking at presidential pardons as a possible response to the Russia investigation. That has apparently included questions about whether or not a president can pardon himself.

This has prompted many in the legal profession to mull the same question: Can Trump actually do that? "From a legal perspective, of course, the Supreme Court has never decided that question. But in our view, a 'self-pardon,' whatever that means, is an abuse of power," Spaulding told me. Analyses prepared by various government officials and legal experts in the Watergate and Bill Clinton impeachment eras came to different conclusions, leaving lots of gray here.

The point is that a self-pardon is uncharted legal territory. "On one hand, it would be—it appears—an admission of guilt," Spaulding said. But then, you just have a very clear question of constitutional law. If the Supreme Court eventually heard a lawsuit challenging a presidential self-pardon, justices would be unlikely to side with Trump, Spaulding suspects, because "we have a long tradition of not letting one person be judge and jury of their own case, which is essentially what he would be doing."

"It smacks of authoritarianism," he said.

But a constitutional crisis? Not so much, according to Feldman. That's because there does not seem to be any possibility that law enforcement will attempt to arrest the president while he is in office. A pardon, Feldman told me, would excuse Trump in case he faced charges after leaving office. If the Supreme Court invalidated the pardon, he continued, "Presumably, the police would go and arrest him and put him in jail. No crisis."

Either way, Trump already seems to be trying to manipulate investigators

The Post and other outlets have also reported on the president's lawyers digging around for conflicts of interest that might invalidate Mueller's conclusions. So far, any supposed conflicts on the special counsel's part (or those of his aides) have been trivial, and it seems unlikely that there are any serious ones. But it's easy to imagine Mueller or his team getting placed on the defensive in the near future—high-powered lawyers who have never made a political donation to one candidate or another are pretty hard to come by.

What's troubling is that Trump last week told the New York Times that if Mueller doesn't stay away from his business interests, that might be "a violation." In the next few weeks, Spaulding said, we may see "see how close [Trump] can get to intimidating the special counsel from doing his job, and seeing how he can change the chain of command."

Trump could try and remove Mueller outright

This would be a huge deal, obviously. It's not entirely clear it is even feasible for Trump to (legally) order Mueller's firing. Essentially, Spaulding argued, "the special counsel can only be fired for cause." (Rosenstein has suggested this publicly.) So Trump could try and have Mueller shit-canned for coming to work drunk, or something like that. But, Spaulding suggested, "to be clear, [Mueller] has a sterling reputation for being non-biased [so], firing him clearly would cross a red line that Congress would have to respond to."

In Feldman's interpretation, Trump actually does have the power to fire the guy—but that would represent a political crisis, not a constitutional one.

Indeed, Senate Democratic leader Chuck Schumer said on Sunday that the firing of Mueller would "cause a cataclysm in Washington." That's partly because this has actually happened before: In 1973, President Richard Nixon ordered the firing of Archibald Cox, special investigator into potential White House involvement in the Watergate break-in. The next year, he resigned rather than endure impeachment.

BTW, Trump is insanely angry at Jeff Sessions

If Attorney General Jeff Sessions passed Trump a note in homeroom that said, "Do you like me? Check 'yes' or 'no,'" there is no question that Trump would check "no." The president told the Times last week that, thanks to the AG recusing himself from Russia investigation, he wishes he hadn't hired Sessions in the first place. And the president has repeatedly hammered the guy for not going after Hillary Clinton for her alleged "crimes."

On Tuesday, Trump went so far as to say that "time will tell" what happens to Sessions, adding that he's "very disappointed with the attorney general." Then, on Wednesday, he kept trashing Sessions, leading Republican Senator Lindsey Graham to say Thursday that there would be "holy hell to pay" if Trump fired his AG. (For his part, Sessions told the Associated Press Thursday he will stick around as long as Trump wants him to.)

Why does this smell a little bit crisis-y? Because Trump could appoint someone else who's a huge fan of his and has no problem sabotaging the Russia probe. To wit: There's been at least one report that Trump has just such a fan in mind in former New York City Mayor and campaign surrogate Rudy Giuliani. (Giuliani has poo-pooed the idea.)

To be clear, if any new appointee didn't announce their intention to recuse him or herself from the Russia probe, they probably wouldn't be confirmed by the Senate. And to prevent Trump from installing one while lawmakers are on vacation, Democrats have made noise about employing parliamentary trickery to prevent what's called a recess appointment. "As a price of being confirmed, any one who replaces Sessions will need to pledge that they're not going to interfere with the Mueller investigation," Spaulding said.

That is, if Mueller hadn't already been fired.

Trump could go on an all-out firing spree

It's worth noting that in the absence of Mueller and Sessions, Deputy Attorney General Rod Rosenstein (the guy who brought in Mueller to begin with) could theoretically appoint yet another Washington insider to be special counsel. But what if Trump fired Rosenstein, too?

Well, we would probably be through the looking glass at that point.

"I think if we had the three-alarm fire that would be caused by firing all three of those folks, it would be almost insurmountable not to respond appropriately with all the investigatory power that Congress has," Spaulding said. The Senate Judiciary Committee chaired by Republican Chuck Grassley of Iowa has already threatened to subpoena Donald Trump, Jr. as part of its Russia probe. Which is to say some Republicans with investigatory power have at least signaled a whiff of independence.

And that's where a crisis would become a real possibility

The problem is that figures in the Republican-led Congress like Graham and Grassley are outliers, and the GOP more often marches in lock-step with Trump—and generally refuses to say a word against the guy. So the idea that a Republican-dominated Congress would ever take decisive action against their own president is purely theoretical. If the firings happen, and Republicans in Congress don't roll up their sleeves and get some answers about Russia on their own, the public will have just watched the president use executive power to successfully quash an investigation into his own potential wrongdoing. Spaulding speculated that "citizens would react quite strongly to something that blatant." But phone calls and picket signs only do so much.

If the courts got involved, things might start getting very tense.

Currently, there are at least three lawsuits pending against Trump over alleged emoluments (gifts, essentially) banned by the Constitution. Much of the juice behind them comes from Democratic lawmakers, nearly 200 of whom signed onto one of the complaints. As Spaulding put it, the hope is that the courts "may continue to be a place where he's going to be held accountable."

It's if court rulings don't go Trump's way and he ignores them that we might really reach a crisis point. There was actually some initial panic about this when a federal judge blocked the Muslim ban in February, but Trump (angrily) seemed to back down.

"If Donald Trump says that he is going to ignore court orders," or if he were able to "violate the Constitution and [not] be stopped, that would be a constitutional crisis," Chemerinsky, the Berkeley legal scholar, told me.

Until then, potentially catastrophic though things may seem, the American system is still holding together. Or, as Chemerinsky put it, the presence of "difficult constitutional issues does not mean there is a crisis."

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