The Price He Will Pay

President Donald Trump's main legacy will likely be a series of new laws and practices designed to prevent someone like him from abusing power or even obtaining it in the first place.
By Seth Masket ,
President Donald Trump steps off Air Force One upon arrival at Andrews Air Force Base in Maryland on December 2nd, 2017.

A question I get a lot from friends and relatives is about why Donald Trump never seems to pay a price for his behavior as president. He makes overt racist insults, he attacks our allies, he disparages the free press, he obstructs justice, etc., and nothing changes—his poll numbers stay the same, Republicans in Congress squirm but do nothing (and sometimes hand him legislative wins), his staffers defend him, and so forth. "How does he get away with it?," I am often asked.

This is an important question that goes to some substantial structural features of the American system of government. Julia Azari dealt with some of this in a post over the summer, but I'd like to delve in a bit more here.

The first thing to note is that the federal government is not designed to mete out rewards and punishments to elected officials in a rapid fashion. As Azari noted, it has built in biases toward stability and a strong presidency. If you feel that the government is not working because Trump's latest norm violation hasn't resulted in impeachment or prison time in his first year in office, you are holding the government to a standard that neither it nor virtually any other democratic government has ever met.

What about the mid-term elections? Could those be used to punish Trump? That's tricky. As of now, 11 months before the elections, the political environment is shaping up to be a bad one for Republicans. Lots of Democrats are running for office, several Republicans are choosing not to run for re-election, the president is unpopular, the president's party historically tends to lose seats in mid-terms—all these features are consistent with a good year for Democrats. Will that be enough for them to actually take control of one or more chambers of Congress? Maybe, but not necessarily; seats in the House of Representatives are safer than they used to be, and the Senate map is bad for Democrats.

But, more importantly, elections just aren't a great tool for punishing presidential norm violations or lawbreaking. Even if Trump's Twitter account went silent tomorrow and he behaved like a model president for the next 11 months, his party would likely still suffer substantial losses next year simply because that's what tends to happen in mid-terms. Democrats will likely claim that their party's gains are a response to Trump's abuses of the office, and Republicans may interpret them as a sign that the media is hopelessly biased against them, but such claims will likely be produced no matter what happens in the elections. What's more, Republicans may do better than expected, even if many Americans are bothered by Trump's behavior. There's little to suggest that election outcomes are a response to the president's day-to-day behavior.

Michael Flynn, former national security advisor to President Donald Trump, leaves following his plea hearing at the Prettyman Federal Courthouse on December 1st, 2017, in Washington, D.C.

There are some important ways in which Trump is paying a price for his behavior, however, and these should not be ignored simply because they move slowly. For one, there's a very serious criminal investigation of this administration moving ahead. Robert Mueller's investigation has now produced four indictments this year, including that of the president's former campaign manager and his choice for national security advisor. In the legal world, this is fast, and consequential, work, and could well end up as a case for impeachment and removal.

What's more, we shouldn't ignore the fact that Trump is highly unpopular. His approval ratings seem mired in the 30s during a period of solid economic growth, low crime, low gas prices, low inflation, and a relatively peaceful international environment. This unpopularity is costly to him and his agenda and it could prove devastating for his party.

Furthermore, presidential norm violations often lead to substantial legal or constitutional pushback. Franklin Roosevelt may have had reasonable justification for running for a third and fourth term, but those were significant departures from established presidential tradition; the political system responded by enshrining the two-term tradition in the Constitution. John Kennedy's hiring of his brother as attorney general led to an anti-nepotism law. Richard Nixon's unorthodox uses of campaign money led to new campaign finance laws.

Trump's own abuses, especially those involving emoluments, conflicts of interests, and nepotism, have shown some areas of federal law in need of clarification or more substantial enforcement. States are already considering requiring presidential candidates to release federal tax returns if they want to appear on the ballot. There's a strong chance we'll see such codifications in the near future, if not during Trump's tenure.

Overall, it's worth remembering that Trump is just finishing up what is usually the most productive year of any presidency. The current GOP tax bill notwithstanding, he doesn't have much of a record of accomplishment, he's deeply unpopular, and he and his children are in substantial legal jeopardy. His main legacy will likely be a series of new laws and practices designed to prevent someone like him from abusing power or even obtaining it in the first place. This is what pushback looks like. It's no doubt incomplete, dissatisfying, and slow for Trump's critics, but rest assured that Trump is not "getting away with it." He's paying a price for his behavior, and that price is likely going up.

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