Is Donald Trump still capable of surprising us? For University of Chicago law professor Eric Posner, the answer is: yes and no.
“It’s not surprising that Trump is disloyal to his own people,” he says in an interview marking the president’s first six months in office, “but the actual form it takes is always shocking. He seems to have a limitless imagination when it comes to humiliating others.”
That sort of creativity is far less evident in Trump’s execution of his actual duties, at least as Posner sees it. The author of a perceptive blog and many books, including The Twilight of Human Rights Law and Law and Social Norms, he previewed the coming administration for Pacific Standard in January.
For our follow-up discussion, he evaluated the president’s performance (inept), discussed the possibility of impeachment (pretty low), and weighed in on whether a chief executive can pardon himself (he thinks not).
Looking back at the Trump presidency after six months, what surprises you? Unsettles you? Reassures you?
Let’s start with what reassures me. I think various institutions that serve as a constraint on the presidency have done quite well. That includes the press, the courts, and the bureaucracy. The Republicans in Congress are in a difficult position, but they’re putting some pressure on Trump with the investigations.
I wasn’t surprised by the general chaos. I wasn’t surprised by Trump’s aggressiveness and his erratic behavior. We saw that in the campaign, and there wasn’t any particular reason to think he would change.
That said, everything about him is unsettling. The violent, irresponsible, careless language. The way he attacks his own appointees and subordinates. The careless diplomatic language. The basic absence of professionalism. Fortunately, there haven’t been any real crises, so these problems haven’t led to any serious immediate consequences. But they certainly could.
There is a lot of talk of a coming “constitutional crisis,” especially if Trump does something really provocative, such as preemptively pardon himself. In your legal view, could he do that?
I don’t think he can. But I can’t say that with any confidence. This has literally never happened. The courts would have to literally make up the law, which is why it’s so hard to predict what they would do.
At some point—probably after he leaves office—the [Federal Bureau of Investigation] could conclude that he had committed a crime, and tell the Department of Justice, which could bring charges against him. The lawyers would go before a judge, who would decide whether the self-pardon is valid. I think a court would say, “No way.”
Self-pardoning never occurred to the founders; the idea would probably have seemed crazy to them. There are various legal and constitutional principles that say you can’t be the judge of yourself, even if you’re president. It would also set a bad precedent. We don’t want future presidents to think they can violate any law they want while they’re in office, and then issue a blanket self-pardon on their last day.
(Photo: Wikimedia Commons)
A more likely scenario, perhaps, is he finds a way to get rid of Independent Counsel Robert Mueller. What then?
I can see two possibilities: Impeachment proceedings would begin, or nothing would happen. The investigation would end, and we would move onto something else. It’s a political calculation the Republicans will have to make. They’ll do so based on their sense of what their constituents want.
Members of the House [of Representatives], even those in “safe” districts, would have to believe they’d be in trouble if they don’t vote to impeach Trump. I have no idea [how many of their constituents] think that way. Ordinary people could see this as a complicated Washington thing that has no direct impact of their lives, or they could see it as a signal that Trump was out of control. I just don’t know.
Granted, it was controlled by the opposition party, but Congress did not hesitate to impeach Bill Clinton in the 1990s.
And it was a disaster. In the end, most people thought his bad behavior wasn’t enough to impeach the president—even though he did perjure himself in the course of trying to cover it up, which was a crime. I think people feel the same way about Trump. If there isn’t strong evidence of collusion with Russia, the fact that he engaged in a cover-up, presumably to protect some people or minimize embarrassment—I don’t think that’s going to be enough to impeach him.
If he fired Mueller, or pardoned his son, Trump would be accused of placing himself above the law. Would that really be an accurate way to frame it?
If he went through regular procedures [to get rid of Mueller], it’s not like he has disbanded Congress or defied a Supreme Court order. It’s within his authority.
The legal details are complicated, but most people would say a president can pardon people in a way that benefits him. Nixon did a lot of this stuff. It did not work out well for him.
George H.W. Bush pardoned Caspar Weinberger and other people involved in the Iran-Contra scandal. The independent counsel at the time, Lawrence Walsh, said that, as a result of that, he would never get to the bottom of the investigation of Bush himself. There were allegations that, when he was vice president, Bush was a participant in the Iran-Contra scheme, and had committed crimes. So I wouldn’t say doing that would be unprecedented, but it would be unfortunate.
Would Mueller’s termination result in the end of all investigations?
No. Congress would continue holding hearings. It may the case that the FBI can keep investigating [the Trump-Russia connection]. State attorneys general could investigate some aspects of it, but I doubt it would amount to much. They could only investigate violations of state law within their jurisdiction.
Scandals aside, Trump has accomplished relatively little to date. When we talked in January, you mentioned that he could use his communication skills to sell the public on legislation. He has done very little of that, except on health care, where his message has been muddled and contradictory. What’s the problem here?
On a tactical level, I think he’s just a terrible president. He has an opportunity to make a case to people. He undercuts people who try to advance his agenda. Teddy Roosevelt, who invented the “bully pulpit” idea, was a brilliant person who used it effectively. So was Franklin Roosevelt. Trump just isn’t.
He could also be more Machiavellian, by threatening or cajoling politicians who are leaning one way or the other. But he’s inconsistent and erratic. As anyone who has children knows, you have to be consistent with your praise or punishment over time. This distribution of rewards and punishments should nudge people in the right direction. I don’t think he has the patience and self-discipline to do this. Nor does he have capable aides who could do it.
Is the lesson that, while it’s good to have a salesman as president, he needs to understand what it is he’s trying to sell?
Actually, I think it’s a good idea to have a politician as president. I don’t think being a salesman makes you a good president. A politician has special skills. All successful presidents have been experienced, successful politicians before taking office.
Being president is not just a matter of selling a building or a brand name. It’s a matter of cultivating relationships, figuring out how to make people feel good about themselves—all those things.
I’m sure Trump has skills of some sort, but whatever they are, they don’t translate to the presidency.
This interview has been edited for length and clarity.
