Ginsberg On Goverment

Since his election to the presidency in 2016, quite a number of commentators have declared that Donald Trump represents a threat to American democracy. These claims seem based as much upon Trump’s bombastic rhetoric as his actual conduct. “The president has talked more than he has acted,” conceded one critic. Nevertheless, several commentators have compared Trump to such demagogues as Venezuela’s Hugo Chavez or even to Mussolini and Hitler who used democratic processes to take power but then systematically dismantled their nations’ democratic institutions.
But, in truth, far from posing a threat to democracy, Trump has reinvigorated democratic politics in America. Trump is a polarizing political figure, but this is precisely what American democracy has needed—a disruptive force to combat the institutional lassitude and public disengagement that can afflict democracies. Trump’s presence and comportment have expanded political participation and civic engagement, reminded Congress that it is a co-equal branch of government (with oversight powers), unsettled the smug and self-satisfied federal bureaucracy, challenged the domestic spying and political machinations of intelligence agencies, and broadened the scope of political debate.
I certainly recognize that this argument will not be popular among most Democrats and even some Republicans who seem to share, if nothing else, a visceral dislike for Trump that can cloud their political judgements. I certainly do not object to criticisms of Trump’s policies or behavior. These can and should be debated and we acknowledge that many of Trump’s programmatic ideas seem based upon transient impulses and are subject to the president’s frequent changes of mind.
I do, however, take issue with critics who see in Trump some sort of dictator-in-waiting. This “resistance” literature generally points to such matters as Trump’s tendency to
denigrate and disparage political opponents, his frequent charge that major media organizations
publish “fake” news about him, and his sharp criticisms of federal bureaucracies, courts, law
enforcement agencies and other institutions when these have thwarted his programs, as evidence
of Trump’s authoritarian and antidemocratic tendencies. These critics have cited as a further indication of Trump’s real agenda his comment, made in jest, to a March, 2017 national press club dinner, to the effect that America might follow the Chinese example and appoint a “president for life.”
Trump’s lack of political civility, indeed, his tendency to at least rhetorically go for an
opponent’s throat is undeniable. Yet, to see in Trump a threat to American democracy seems
not only a bit overblown but also indicates a lack of understanding of democracy in general and
American democracy in particular. Trump is a disruptive force, to be sure, but an occasional bit of disruption can be good for democracy.
In criticizing comrades who questioned his lack of courtesy and refinement, Mao Zedong once quipped that a revolution is not a dinner party. Well, neither is democracy. What
distinguishes democracy from other forms of government is a dialectical character that early
observers correctly saw as a kind of institutionalization of revolutionary struggle. Like its
revolutionary antecedents, healthy democracy requires vigorous and sustained popular
mobilization, spirited ideological contestation, and lively battles among rival economic, social
and political interests. Healthy democracy also requires representative bodies that exercise
substantial political power, and the subordination of appointed to popularly elected officials.
As is also true of its revolutionary cognates, though, over time democratic politics tends to lose its vitality. Mobilization diminishes, ideological fervor and contestation wane and interest groups are able to use their organizational advantages to capture pieces of government, collecting rents and transfers, while ordinary folks are left to participate in increasingly empty electoral rituals. Jonathan Rauch labeled this process “demosclerosis, ” a political hardening of the arteries.
In recent decades, unfortunately, American political processes have trodden this path and
have become a rather pale imitation of democracy, with a Congress that has been pushed to one side by the executive, an electorate that is only partially mobilized and powerful rent-seeking coalitions of bureaucrats and “stakeholders” dominating major sectors of the economy. American politics is also characterized by efforts from various quarters to substitute restricted speech for robust debate in the political arena.
To make matters worse, this set of pathological conditions is defended by various forces on both the political Left and Right that benefit from them. Thus, for example, Republicans have supported restrictive voting rules that they believe reduce Democratic strength at the polls. Democrats, for their part, favor expanding the electorate, but nevertheless have supported the construction of institutions like the Consumer Financial Protection Bureau (CFPB) that are insulated from the vicissitudes of electoral change and allow important Democratic interest groups privileged access to decision making.
American democracy was born in the blood and fire and mass mobilization of the
Revolution, and was reborn in the same cauldron during the Civil War. In the subsequent decades, the civil rights and other broad-based movements have effected meaningful societal changes. Without occasional disruption, democracy devolves into a politics of elites and interest groups in which the citizenry is marginalized.
Trump certainly stimulates anger, resentment and political struggle as he attacks and unsettles established institutions, processes, political discourse and ways of doing business. But, in response to Trump’s provocations, the president’s opponents have been compelled to raise their own voices, mobilize their own followers and, thereby reenergize democratic processes. Whatever one might think of Trump, he seems less a threat and more a stimulus to democratic politics.
Of course, as one episode in American political history demonstrates, political struggle can become too intense. But, for the most part, the institutional checks built by the framers have had no difficulty withstanding vigorous clashes. When democracy becomes turbulent, checks and balances, staggered terms, federalism and so forth generally function as designed. And, if intemperate rhetoric, alone, could destroy the Constitution, American democracy would never have gotten off the drawing boards. The barbs exchanged by the supporters of Jefferson and Hamilton might have made even Trump blush.
Let us consider four ways in which Trumping democracy has had positive consequences for American politics: First, Trump’s rhetoric and actions, far from endangering democracy, have sparked vigorous voter mobilization and electoral contestation by both major political parties. Surely, this is the essence of democracy. Second, think about Trump’s attacks upon various bureaucratic agencies, including the FBI. Many of these agencies ignore elected officials, collude with interest groups, and resist efforts by Congress and the president to influence their actions. Indeed, one of Trump’s targets, the CFPB, was especially designed to thwart democratic accountability. By attacking these agencies, Trump furthers, rather than undermines democratic values. Third, Trump’s relationship with Congress and the federal judiciary hardly shows evidence of a would-be dictator. Unlike his immediate predecessors who ignored Congress and preferred governing through executive orders, Trump has worked closely with congressional leaders and has encouraged Congress to exercise long-dormant powers such as the Congressional Review Act (CRA) which allows the legislative branch to strike down bureaucratic regulations it disfavors.
Finally, consider the ways in which Trump has affected the free expression of ideas in the U.S. Some pundits have declared that Trump is an enemy of free speech. Yet, in contemporary America, the main proponents of limiting speech seem to be progressive forces on college campuses and in the national media. Trump cheerfully offends the political sensibilities of his opponents and, by so doing, has broadened, opened or reopened discussions of issues such as diversity, immigration, free trade, climate change and so forth. Since, generally speaking, the proponents of these ideas are the ones who wish to foreclose discussion, it is not clear why it is Trump who should be seen as the enemy of free expression.
I do agree with his critics that Trump is often boorish, ill-tempered and uncivil. But, so what? We wonder whether some of the criticisms of Trump’s intemperate rhetoric might not represent a not-so-subtle defense of the political status quo. As the redoubtable Chairman Mao understood, in the political arena civility and gentility are, more often than not, the enemies of change.

On Monday, June 26 the U.S. Supreme Court handed President Trump a partial victory by allowing the government to prohibit the entry into the U.S. of some foreign nationals banned by the president’s January, 2017 executive order. In his order, the second Trump issued on the same question, most travelers from six Muslim-majority countries were temporarily prohibited from entering the United States.
Was the president’s ban legal? Supporters of the ban pointed to the Nationality Act of 1952, which gives the president the authority to impose restrictions on the entry of foreign nationals if he or she determines their entry “would be detrimental to the interests of the United States.” Opponents of the ban argued that the 1952 statute was modified by a 1965 law that prohibits discrimination against immigrants based upon their country of origin. They argued, moreover that Trump’s various utterances and “tweets” showed that the ban was aimed only at Muslims, a form of discrimination based upon religion that is inconsistent with constitutional precepts.
While lower federal courts had blocked the travel ban from going into effect, the Supreme Court said it would hear the case in October but, in the meantime would allow the ban to go forward. Exemptions would be made for travelers who were coming to the U.S to join family members, to take job offers or to attend school. Though the Court could rule against the ban in October, generally when the Court allows the government to go forward pending later review, it is signaling that it is likely to uphold the government’s (in this case the president’s) actions.
Americans may debate the propriety of President Trump’s executive order but they should not be surprised that it was upheld by the Supreme Court. Every year, presidents issue hundreds of executive orders and these are nearly always upheld by the federal courts. Presidents often use executive orders to achieve goals that would have little chance of winning congressional approval. Executive orders are very difficult for Congress to overturn since legislation negating such an order is likely to be vetoed by the president who issued it. The courts are reluctant to engage in battles with the White House. The result is that rule by presidential decree has become an unfortunate fact of life in the United States.
By the way, the only effective mechanism for negating an executive order is a new order by the next president.

In the opening months of 2017, the new Trump administration was rocked by a steady stream of leaks and media revelations related to such matters as Trump aides’ dealings with Russia, the president’s intemperate and sometimes reckless comments, conflicts of interest on the part of Trump staffers and so forth. A number of investigations into these charges were launched by congressional committees and by a special prosecutor appointed by the Justice Department. This barrage of revelations and investigations seemed to follow the pattern established during the 2016 presidential election.
Throughout 2016, it should be recalled, America’s political waters were roiled by a host of investigations and revelations aimed at influencing the outcome of the 2016 presidential election. Republicans fired the opening shots by launching a congressional investigation of Hillary Clinton’s role in the deaths of U.S. embassy officials in Benghazi, Libya and another investigation of Clinton’s use of a private email server to handle official State Department correspondence. Neither investigation led to the bringing of formal charges against Clinton but both convinced many Americans that the former Secretary of State was dishonest and untrustworthy. Republicans, indeed, charged that Clinton was spared prosecution only because her allies in the Department of Justice moved to protect her.
For their part, Democrats had no difficulty finding and revealing information damaging to the campaign of Republican presidential nominee, Donald Trump. In October, 2016, with only weeks before the November election, a video surfaced showing Trump making lewd comments about unnamed women. Democrats and many Republicans declared that the video showed Trump to be unfit to hold high public office. The national news media predictably decried what they described as a dangerous and vicious turn in American politics. Rather than focus on the many issues facing the nation politics, they said, had sunk to a new low of mudslinging and personal attack.
Many of the charges leveled against Trump seemed quite serious, but it is worth pausing to consider their significance in a larger political context. From the earliest years of the Republic, mud has been an important weapon in the arsenals of competing political forces in America. The Jeffersonian press, for example, made much of Alexander Hamilton’s illegitimate birth and the papers allied with Hamilton raised many questions about Thomas Jefferson’s parentage and alleged sexual peccadillos. Modern-day politics is an extension of these practices, rather than some aberration.
In recent years, at least since the Watergate investigation of the 1970s that drove President Richard Nixon form office, each political party has made use of heavily publicized investigations to harass and embarrass its foes in the other party. Thus, for example, in the 1980s Democrats launched the Iran-Contra investigations that damaged the Reagan administration. In the 1990s, Republicans did enormous political damage to President Bill Clinton with the Whitewater investigations. In 2003, Democrats investigated charges that top Bush administration officials had leaked the identity of a covert CIA operative whose husband was critical of the president’s policies in Iraq. Senior GOP official Lewis “Scooter” Libby was convicted of lying to investigators but his prison sentence was commuted by President Bush.
It is, of course, true that many of these investigations revealed evidence of serious wrong-doing in high places. In most instances, however, the actual purpose of the investigation was to publicly humiliate a political opponent by publicizing sensational charges of official and/or private misconduct. Often, the charges simply involved embarrassing or inappropriate behavior, or minor infractions that hardly presented threats to the safety of the Republic. Thus, during his confirmation hearings. Justice Clarence Thomas was accused, amid much fanfare, of engaging in inappropriate sexual banter with a former subordinate while Judge Douglas Ginsburg was compelled to withdraw his name from consideration for the Supreme Court seat to which he had been nominated when it was revealed that he had smoked marijuana in college. Several Republican and Democratic cabinet nominations had to be withdrawn when it was revealed that the nominees had neglected to pay the so-called “nanny tax” for former household employees. And, of course, President Bill Clinton was humiliated by revelations of sexual escapades in the Oval Office. Other nominees, staffers and officials were embarrassed by charges that they had made inappropriate comments, engaged in improper dalliances or, worst of all, received poor grades at Yale.
In a number of instances, these stories were based upon leaks from disgruntled staffers or information that emerged during the routine course of news gathering. Many of the most embarrassing revelations, however, were uncovered by investigators employed by politicians specifically for the purpose of ferreting out potentially damaging information about their opponents. Each political party makes extensive use of experts in what has come to be called “opposition research.” Some opposition research is done on a part-time basis by congressional staffers and political consultants. In the city of Washington, alone, however there are dozens of firms that specialize in this art. For a fee, opposition researchers will conduct computer searches, interview subjects’ acquaintances, conduct surveillance and read subjects’ books, articles and speeches to search for material that can be used against them.
One famous opposition researcher, Washington detective Terry Lenzner, specializes in searching subjects’ trash–a practice known as “dumpster diving.” Indeed, Lenzner wrote a magazine article on dumpster diving, which he characterized as a “very creative” means of securing information. Lenzner first attracted attention during the Clinton impeachment battles in the 1990s, when he was employed by the president’s allies to obtain information that might be used to discredit the various women who were making allegations of sexual improprieties against the president. Later, Lenzner was retained by the Oracle corporation to collect information about Microsoft that might be useful in Oracle’s legal and political struggles against its giant rival. Microsoft charged that Lenzner twice approached the night cleaning crews who serviced an office building used by one of its lobbying arms and offered to purchase its trash.
And, while the media decry mud slinging, the effectiveness of dumpster diving and other forms of opposition research depends, in part, upon the willingness of the news media to publicize the information that is uncovered. Generally speaking, liberal newspapers, periodicals and television networks are very happy to report the misdeeds of conservative politicians while conservative papers, periodicals and broadcasters are delighted to devote time and attention to allegations of misconduct on the part of liberals. Thus, liberal publications like the New York Times and the Washington Post were the first to publicize accusations of misconduct on the part of Richard Nixon, Ronald Reagan, former Republican House majority leader Tom DeLay and other conservative politicians, most recently including Donald Trump. In a similar vein, revelations of sexual improprieties on the part of Bill Clinton were initially publicized by the American Spectator, a conservative news magazine, and were given enormous play by Fox Network News and scores of conservative “talk radio” programs. Once a story has gained momentum, however, ideological factors seem to diminish in importance. Rather like piranha fish sensing blood in the water, media of all ideological stripes revel in the struggles and, especially, the death throes of the unfortunate subject of a campaign of revelations. Reporters never tire of these political dramas and, hence, contending political forces work to provide the media with a steady stream of new dirt with which to discredit their opponents. Dumpster diving is definitely a profession with a promising future.

In the several days since he assumed the presidency on January 20, Donald Trump has issued a host of executive orders and presidential memoranda, signaled a possible shift in American foreign policy by holding an apparently cordial discussion with Vladimir Putin, denounced the mass media, shuffled and reshuffled the National Security Council, fired the Acting Attorney General and named a new Supreme Court justice. Several of his executive orders reversed Obama-era orders such as reopening the way for the Keystone XL pipeline. Other orders implemented campaign promises such as the construction of a wall on the U.S.-Mexico border and imposing a freeze on immigration from several predominantly Muslim countries.

Still other presidential directives called for expediting environmental reviews and reducing the size of the federal bureaucracy. These directives, couched in the form of presidential memoranda, have less force than executive orders, often giving guidance or suggestions to federal agencies rather than definite commands

Accompanying this flurry of activity was a swarm of presidential tweets. Continuing the pattern set during his campaign, Trump has issued tweets every morning. He has tweeted new domestic policy initiatives, new foreign policy directions, praise for his supporters and ill-tempered attacks against his opponents. The nation’s political agenda seems to be reset every morning from President Trump’s Twitter account.

Many commentators have called the first days of the Trump administration chaotic and have decried “government by tweet.” Each of Trump’s policy initiatives and many of this appointments has generated outrage among the president’s foes and on the part of the news media–the wall the immigration ban, the Supreme Court appointment–were all subjected to intense criticism and even angry demonstrations. Is this unstinting barrage of presidential actions and announcements some sort of executive madness?

Perhaps, but whether intended or accidental, Trump’s barrage of initiatives is thus far by sheer volume and audacity, having the effect of confusing and overwhelming his opponents. Indeed, each new measure creates an uproar that seems to drown out the uproar over the previous initiative. With the immigration ban, the wall was virtually forgotten. In turn, the Supreme Court appointment, whose announcement was moved forward for this purpose, diverted attention from the immigration ban and so forth. The news media are particularly susceptible to this Trump tactic. No reporter wants to be the last person covering yesterday’s news. Yesterday’s events are quickly lost as today’s events take their place.

So long as Trump is able to maintain the initiative and his current pace, his foes will be hard pressed to check him and regain their own footing.

Throughout his 2016 presidential campaign and continuing after his victory in the 2016 national presidential election, Donald Trump has made daily use of Twitter–usually tweeting before dawn– to promote his ideas, lambaste his opponents and reach national constituencies without relying on the conventional mass media for cooperation. Indeed, the media are among the main targets of Trump’s tweets. In January, 2017, for example, in response to a CNN report intimating that the Russians had acquired material that could be used to blackmail the incoming president, Trump accused CNN of publicizing “totally made up facts by sleazebag political operatives…FAKE NEWS.” In other tweets, Trump asserted his views on foreign and domestic policy issues, praised his cabinet nominees, attacked companies that moved production out of the U.S., and generally offered his own perspectives on national and international developments.
Many commentators were initially critical of Trump’s propensity to tweet and dismissed his efforts as examples of Trump’s petulance and propensity to shoot from the hip. Some accused Trump of engaging in foolish attempts to conduct government by tweet.
After a time, however, even Trump’s critics came to see the power of tweeting as a political tactic. To Trump, early-morning tweets are a way to set the agenda for the day’s news coverage. Every morning, reporters find comments from the president elect waiting for them as they sip their coffee. Some reporters and commentators are moved to respond positively to Trump; many more are inclined to criticize Trump’s comments. No journalists, however, can ignore Trump lest they be locked out of the day’s journalistic conversation. The result is that, every day, much of the day’s news is about Trump. Whether he is praised or criticized is irrelevant. Indeed, Trump has taught his supporters to reject critical comments from his enemies in the press-purveyors of “fake news”–and to believe only positive coverage of his efforts. Twitter has helped Trump become the center of national attention and the dominant figure on the American political landscape.