The new Trump administration is busy. In a fury of executive orders, the restored president has frozen hiring at the federal government, cut off large amounts of science and research funding, ended or severely curtailed international programs in women’s health and HIV treatment, attempted to unilaterally amend the constitution to deny citizenship to hundreds of thousands, cut off aid to Ukraine, provoked a diplomatic spat with Colombia, and renamed the Gulf of Mexico in official documents as “the Gulf of America.”
Many of these moves are stunts and distractions, meant to appease Trump’s base of aggrieved culture warriors. Others are meant to further Trump’s personal power, and to make sure that no obstacles will be presented to his second term agenda of malice, retribution, and corrupt self-dealing.
On Monday, Trump made a move that belongs in the latter camp. Disregarding the formal process that is required by law before nonpolitical federal civil servants can be terminated, Trump’s acting attorney general, James McHenry, summarily fired more than a dozen Justice Department career prosecutors. All of those fired had been assigned to the two federal criminal investigations of Mr Trump pursued by former special counsel Jack Smith in the classified documents and January 6th cases. In a letter informing the attorneys of their termination, McHenry wrote that their involvement in the cases was the impetus for their firing. “Given your significant role in prosecuting the president,” McHenry wrote, “ I do not believe that the leadership of the department can trust you to assist in implementing the president’s agenda faithfully.”
It is the kind of sentence that has been produced by the profound shift in the constitutional order under President Trump. In another lifetime – before Trump’s entry into national politics – the notion that the Department of Justice existed to “implement the president’s agenda” was the kind of thing that people could end their careers by merely suggesting.
The Department of Justice’s independence was once so fiercely protected that when the Obama Attorney General Loretta Lynch exchanged pleasantries with former president Bill Clinton on a tarmac in Phoenix in 2016, the incident ballooned into a national scandal that contributed to Hillary Clinton’s electoral defeat later that year. When Richard Nixon tried to exert pressure on the Justice Department to drop its investigations of him in 1973, demanding that Watergate special counsel Archibald Cox be fired for his political disloyalty in much the same way that Trump has now moved to fire the lawyers who worked for Jack Smith, the Justice Department officials were so aggrieved by Nixon’s overreach that both the Attorney General and Deputy Attorney General resigned immediately, in an episode so dramatic that it became known as the “Saturday Night Massacre.”
But what was then considered an unacceptable and arrogant presumption of executive power by Nixon barely registers as an offense from Donald Trump, who has issued a blistering series of actions rewarding his friends and followers and punishing his allies in the week since he returned to power. He pardoned all the January 6th convicts, including those who had been found guilty of violent offenders, and some have already allegedly reoffended following their release.
But no matter: to Trump, violence committed in his interests is no sin. And he has rescinded the protection details of officials and former officials who have been subjected to threats by his supporters, including Anthony Fauci; to Trump, those who displease him are not entitled to protection from violence. They deserve what they get, and any number of the roving violent January 6 rioters who have now been released may be inclined to give it to them.
We do not like to admit it, but it may be time to state plainly what many of us already know: that Trump has already largely remade our constitutional order. Powers that no one would have imagined that the president had just two weeks ago, when the office was occupied by a Democrat, are noddingly assumed to be within his purview now.
It is hardly a debate, now, whether the president has the power to impose tariffs without the cooperation of congress, though the legal question is far from settled; it is assumed that his bizarre directives to suspect funding that has already been appropriated by Congress must be obeyed. The firing of the prosecutors is a transparent overreach, but it is not clear that anyone will be able to stop him: if the lawyers sue to try and enforce their own rights as civil servants – or to try to force the president to recognize the limits of his own power – it seems perfectly likely that the large number of Trump appointed judges on the federal bench will retroactively rewrite the law to say that Trump, if not other presidents, has in fact had this power all along.
Such is the vision of the constitution that Trump seeks to impose: one in which his whim becomes law, one in which the power of his office is constrained only by the limits of his imagination. When Trump suspended birthright citizenship last week, a judicial order suspending the declaration’s effect went into place quickly. But that case will wind its way up, to the highest echelons of our very conservative judiciary, and though the law is clear, the extent of the US supreme court’s willingness to abase itself for the sake of Trump’s whims is not. The Trumpist vision of the constitution, after all, is that it says whatever Trump wants it to say. And there are some in the judiciary who believe that their job is to create post-hoc rationalizations for why everything this president does it legal.
Is the Justice Department a mere accessory for Trump’s agenda? The Republicans seem to think so. But this is there vision of all government, now: as tools for the exercise of one man’s will. Trump’s vision of governance reminds me of nothing so much as the declaration attributed to Louis XIV: “L’Etat, c’est moi”: I am the state. There is a word for a government that runs this way, contorting itself merely to one man’s will. But that word is not “democracy.”
