What He Could Do

What we are witnessing now is the birth of a new political order, and the more frantic a handful of media elites become, the more powerful that new political order becomes….¹

—Stephen K. Bannon

Standing beneath the dais on inauguration day, squeezed uncomfortably between the Washington establishment gathered at the west front of the Capitol and Trump’s hooting supporters on the lawn below—“Lock her up! Lock her up!” they chanted when Hillary Clinton was introduced—I marveled that the rain that had threatened for hours chose to fall at the precise second the newly sworn president opened his mouth to speak. It seemed a grim joke, so obvious as to be in bad taste, bringing forth inevitable clichés of an Age of Trump ushered in by weeping skies. I felt the water run down my face (all umbrellas had been confiscated); and yet it took only a few hours to learn I’d been mistaken. “You know, I looked at the rain,” the expansive new president told the black-tied attendees at the Liberty Ball that evening, “which just…never came!” By the next day he was telling CIA employees that “God looked down and he said, ‘We’re not going to let it rain on your speech!’” Soon he was raving about the sunshine.

If it remains to be seen whether we are truly “witnessing…the birth of a new political order,” it is clear, a month into Trump’s ascension, that we are all his prisoners, held fast in the projected drama of his mind. As the battle over that new political order is enacted on the national stage, we have all become the dragooned antagonists in the play. This is what it is to live in the realm of the Big Man: his drama perforce is ours. Relentless political struggle, permanent revolution, shattering of norms, scandal and controversy, the capital hip-deep in broken crockery: this is what his supporters signed on for and this is what he is determined to give them; perhaps he knows how to give them little else.

To him they are everything, his base: “This is a beautiful movement!” “They’ve never seen a movement like this in our country before.” They are his creation, permanent suppliers of the adulation and self-affirmation he craves.² Now they cheer and hoot and scoff while their hero, saber in hand, slashes and hacks at his enemies among the hated status quo. The latter include not just Stephen Bannon’s “handful of media elites” but many others who are appalled and outraged and find themselves forced to live under the pall of permanent political anxiety that hangs over the nation’s cities. It is our outrage, our disgust, our knee-jerk shock and condemnation that animate the play and give verisimilitude to the battle being fought. We are the enemy and our screams of dismay are vital to the drama.

Behind the controversies about crowd size and alternative facts and illegal voters and Muslim bans, all the shock and alarm and political fatigue can be reduced to a dawning horrified recognition that President Trump is indeed…Donald Trump. His uttering a thirty-five-word oath of office did not magically make him into someone else; he is determined to change the office much more than the office could ever change him. How could anyone have doubted that President Trump would be Donald Trump plus great power and not Donald Trump plus great restraint? And that he would be determined to use that newfound power to begin to do pretty much what he told his base he was going to do?

And—a final irony—that his very determination to break crockery and spread chaos and disruption is a major obstacle standing between him and the “new political order” whose birth his Svengali Bannon claims he will oversee. The necessity for continual disruption, constant outrage, maintaining an iron grip on the news cycle, and sheer winning without ever retreating means he has a grand proclivity for getting in his own way—“stepping on his own dick,” in political parlance—and we need, not for the first time, to let ourselves be grateful for that. It has thus far proved to be the hated status quo’s most important protection—not least because in very short order he has managed to produce a growing cadre of adversaries within the government itself.

Most important, Trump’s aggressive and reckless sallies against intelligence professionals have secured him powerful enemies within the national security apparatus, who have increasingly been making use of their contacts in the elite press—particularly The Washington Post and The New York Times—to fight back and undermine his new administration. This is an important part of the so-called Russia scandal: that the “intelligence services,” in the words of Connecticut Senator Chris Murphy, “seem to be at war” with the new president.³ That war has already claimed a high-level casualty in the person of General (retired) Michael Flynn, the president’s first national security adviser, who was fired after only twenty-four days in the job. Though Trump has railed against “illegal leaks” and declared that Flynn “was treated very unfairly by the media,” this side of the story—the bureaucratic war being waged against Trump from within the government—by its nature cannot be adequately told in the press itself, because reporters, however much they resist acknowledging it, in effect are vital players. This storyline is obscured, one might say, by the storytellers’ own shadows.

Four weeks of the Trump ascendancy have been an ongoing seminar on where norms end and laws begin, on how much of what we had relied on when it came to the president’s conduct rested largely on a heretofore unquestioned foundation of centuries-old custom. That the president would express respect for the prerogatives of Congress and the judiciary, that he would acknowledge the country’s need for an independent press, that he would generally tell the truth and hold in respect the public record: in little more than the time it took to recite the oath of office much of this has been swept away. Donald Trump is a proud shatterer of these norms, and the louder the crash and splatter the better: for to his supporters such norms are nostrums, antiquated excuses for the elite’s own self-protection, and the wails of outrage and protest mean their hero is doing what they sent him to Washington to do.

The norms are gone, perhaps never to be fully restored, and we have advanced now to the laws. The dividing line is surprisingly murky. That the president would not use his office to promote his personal business, for example, depends not only on the so-called emoluments clause of the Constitution but a good many subsidiary norms that Trump began shattering some time ago, when he refused to release his tax returns during the campaign. (His long-standing vow to release them once an audit was completed has been quietly abandoned.⁴)

It seems plain now that in the near term the emoluments clause has in common with these norms that it requires political animation: that it has life only to the degree that those in power are willing to enliven it. Thus far Republicans in Congress, still stunned to find themselves enjoying an undreamed-of monopoly on power and struggling to craft a workable political program not based solely on ressentiment, have shown themselves uninterested in pressing Trump on his business entanglements and seem willing to stand by and let the presidency become a source of great wealth for the Trump family. Thus do sacred cows perish, not with a bellow but with a whimper.

Ours is famously said to be a government of laws, not of men, and yet we find in the Age of Trump that the laws depend on men and women willing to step forward and press them and that such are not to be found in the dominant party in Congress. Republicans are too divided and too focused on the main chance to move to protect what suddenly appear to be abstract principles. In an age when their party cannot muster a national popular vote majority they find themselves unaccountably in full possession of two branches of government and face the task of mastering their divisions sufficiently to pass a political program that won’t further doom them to the wilderness. This means adopting policies of opposition designed to cultivate and harvest resentment, such as repealing Obamacare, which provides health insurance to more than twenty million Americans, while somehow shaping them into a positive program that they can present to constituents as having improved their lives. It is a daunting task and thus far they show few signs of being up to it.

Untroubled by norms, President Trump required only two weeks to come face-to-face with laws in the form not of Congress but of three judges of the Ninth Circuit Court of Appeals. Once again banning Muslims was what he had promised his base he would do. That the executive order itself was a legal mess in its drafting and in its execution stemmed both from the modus operandi that the Trump team has adopted—policies closely held, drafts jealously sheltered from the eyes of those even in the departments or agencies responsible for carrying them out (taking a page from Dick Cheney’s post–September 11 playbook)—and perhaps from the desire of the president and his advisers to stage a fight with a major institutional force not yet recumbent before him: the judiciary.

Thus the president’s assertion of his “unreviewable” powers in the face of “so-called” judges was not just absurd or ignorant but a bit of bait, establishing the basis for blaming the judiciary for any terrorist attack that was to come. On this he tweeted indefatigably and repeatedly: “Just cannot believe a judge would put our country in such peril,” he said in his most explicit tweet. “If something happens blame him and court system. People pouring in. Bad!” Then: “I have instructed Homeland Security to check people coming into our country VERY CAREFULLY. The courts are making the job very difficult!”

“People,” of course, are not “pouring in,” certainly not from the seven countries targeted. But the phrase links once again the country’s vital security to the complex of issues at the heart of Trump’s “America First” politics: trade, immigration, and terrorism. Fortress America is being assailed by foreigners who pour into the country and take our jobs, by elite technocrats (“stupid people”) who negotiate trade deals that leave our borders unprotected, by traitorous businessmen who move factories abroad, and by terrorists who take advantage of the nonexistent immigration safeguards to penetrate our shores.

Everywhere the Other threatens. Everywhere the stupid, ineffectual, corrupt, self-dealing elites do nothing to protect the Forgotten American, in effect allying themselves with the threatening outsiders, becoming, in reality if not intent, traitors. As Trump proclaimed from the Capitol scarcely a month ago, “this stops, right here and right now.” But now “so-called judges” stand in the president’s way.

The president will likely get his immigration ban, in one form or another, by backing up, rewriting the executive order, and proclaiming victory. Commentators will bemoan the fiasco that his first immigration rollout became. But Trump will have established the precedent of saddling the judiciary with responsibility for the next attack. Jack Goldsmith, the former head of the Justice Department’s Office of Legal Counsel under George W. Bush and now a professor at Harvard Law School, notes that “Trump is setting the scene to blame judges after an attack that has any conceivable connection to immigration.” He goes on:

If Trump loses in court he credibly will say to the American people that he tried and failed to create tighter immigration controls. This will deflect blame for the attack. And it will also help Trump to enhance his power after the attack. After a bad terrorist attack at home, politicians are always under intense pressure to loosen legal constraints. (This was even true for near-misses, such as the failed Underwear bomber, which caused the Obama administration to loosen constraints on its counterterrorism policies in many ways.)

Courts feel these pressures, and those pressures will be significantly heightened, and any countervailing tendency to guard against executive overreaction diminished, if courts are widely seen to be responsible for an actual terrorist attack. More broadly, the usual security panic after a bad attack will be enhanced quite a lot—in courts and in Congress—if before the attack legal and judicial constraints are seen to block safety. If Trump assumes that there will be a bad terrorist attack on his watch, blaming judges now will deflect blame and enhance his power more than usual after the next attack.⁵

One might add that Trump’s executive order and the presidential Twitter assault on the judiciary that followed have set up the judiciary to be blamed following any attack, not just one having “any conceivable connection to immigration.” In his followers’ view Trump has acted to protect the country and “political” judges have blocked him. He has put them in a position to take the fall. Perhaps this was not the original plan but with Trump, it is safe to say, there will likely never be an original plan that plays out to the end. As the hapless Jeb Bush observed, Trump was “a chaos candidate and he’d be a chaos president.” Better to say that Trump uses chaos as a vital element in his tactics, perhaps having learned during his long career to capitalize on the chaos that his recklessness, ignorance, and aggression inevitably create.

One might call the resulting tactics “shock and opportunity”: Trump uses chaos to shock his opponents into varying crouches of outrage and contempt and then lunges forward amid the tumult wherever he sees an opportunity presenting itself. No wonder he thinks of himself as the supreme “counter-puncher.” His virtuosity is in his opportunism.

It is against this reality that we must see the likelihood of a crisis as the vital springboard of a Trump presidency, especially an increasingly shaky, unpopular, and unstable one. The lower his poll numbers, the more outlandish his lies, the greater the resistance from opponents within the bureaucracies, the thicker his scandals and chaos, the likelier he will be to seek to use a crisis and all the opportunities it offers to lever himself from a position of defensiveness to that of dominating power.

It is impossible to say when such a crisis might present itself or what it might be: A confrontation with Iran in the Persian Gulf? A dust-up with China over its claimed possessions in the South China Sea? A terrorist attack on American soil? There is no way of predicting, but it is worth taking very seriously that some sort of crisis will come and that, given Trump’s past behavior, his ruthless opportunism, and his drumbeat emphasis on “protecting the country,” such a crisis might well serve as a turning point in a Trump presidency, particularly one that is increasingly under siege.

Consider the possibility of a terrorist attack on American soil, even a failed one. Not only would such an attack, as noted, put Trump in a perfect position to strike out at the judiciary, a major countervailing institution, it would offer him the political leverage to put down various rebellions within the bureaucracy, particularly within the intelligence agencies. There is no way to know whether such an attack will come but one can say that Trump, by attempting to strike out at Muslims generally, as he had vowed to do, has managed to place the Islamic State in the tempting position of being able to affirm, by attacking the United States, that it is the avenger of all Muslims. No accident that its propagandists have been nothing short of exultant, dubbing Trump’s executive order “the blessed order” and thus raising it to the level of the United States’ “blessed invasion” of Iraq as a miracle savior of its cause.

If, as the Islamic State has asserted, the goal of its attacks in the West has been to “eliminate the gray zone”—to place “Muslims in the West…between one of two choices,” to either “apostatize or [migrate] to the Islamic State, and thereby escape persecution from the Crusader government and citizens”⁶—then Trump’s immigration ban goes far toward accomplishing the same thing: isolating Islamic communities, placing them all among a besieged minority whose travel is restricted and whose loyalty to their adopted countries is put in question. Already several jihadist tweeters asserted that the prophecy of the late Anwar al-Awlaki, the American-born cleric killed in a drone attack in Yemen in 2011, that the “West would eventually turn against its Muslim citizens,” had been fulfilled.⁷ If one sought to design a policy to encourage radicalization, it would be hard to suggest a better one.

One needn’t posit an administration master plan to notice that a further attack, even an unsuccessful one, will find the political ground well prepared. The panic over security that follows will open the way to a variety of measures to “protect the country,” few or none of which might have been necessary to prevent the attack in the first place. As we have seen, after an attack politicians seize the opportunity to act, not least to deflect blame from themselves, and we can expect President Donald (“The hour of action has arrived!”) Trump, after his repeated vows to keep the country safe, to act aggressively and comprehensively.

How far he might go would depend on the severity of an attack, the ambitions of the administration, and perhaps how cornered the president feels himself to be. What measures might we expect under a Trump state of emergency? Probably strong steps against refugees, aliens, and immigrants. Suspending all entry of refugees. Widespread deportations. Expelling many green card holders. Further tightening and even suspending immigration. Mosques might be placed under surveillance, the much-discussed Muslim registry established.

More broadly, and again depending on the severity of an attack, bulk collection of metadata might be reinstituted along with other forms of domestic surveillance. Long-standing constraints on the military and the CIA operating domestically might be loosened or eliminated. Black sites would be reestablished and torture reintroduced. The cells at Guantánamo, nearly empty now, would once again begin to fill. The standing post–September 11 Authorization for the Use of Military Force might be expanded or replaced, allowing unlimited military strikes abroad—and, perhaps, at home. The latter might lead, in the case of a particularly severe attack, to the suspension of habeas corpus.

Certainly if such an attack were to come during the current Congress there is no reason to expect anything other than majority cooperation and support, not only for Trump’s specific responses to the attack but for the rest of his program. Democrats, whom Trump would denounce as worse than judges in their obstructionism, would be on the defensive. And the courts, whose pushback in any case would take much longer—as it did after September 11—will have been politically hamstrung by a commander in chief who will be in a position to declare, and to repeat, that he had warned the “political judges” not to second-guess him in what was needed to protect the country but that they had not listened. He will not be shy in saying the same about the press, “the most dishonest human beings on earth.”

By then his political drama will have been elevated from a battle against elites and the status quo to a heroic struggle for the survival of the nation. As the hero was fond of telling his crowds during the campaign: if he lost, “we won’t even have a country anymore.” There is little reason to suspect they don’t believe it still and no reason to think he does not. “Never let a crisis go to waste,” President Obama’s first chief of staff was fond of saying. It is fair to expect that, in the face of opportunities to increase his power, destroy the opposition, and build his “new political order,” President Trump will once again gaze upon the darkening skies and see only sunshine.