Norms and Conventions Meet Donald Trump

Neil Siegel - 2nd March 2017

I previously promised evidence that Donald Trump disrespected norms designed to discipline presidential candidates and has since flouted constitutional conventions designed to keep partisanship within reasonable bounds, ensure governmental competence and accountability, and maintain trust in government.  Space limitations permit only illustrative examples.

Here are some norms that Trump violated during the campaign:

  • Notwithstanding norms of respect for human dignity, Trump indulged in racism, sexism, misogyny, Islamophobia, and mockery of the disabled in ways that are extraordinary in contemporary American politics. Hate crimes and other hate-filled speech and actions have risen since his election.
  • Notwithstanding norms of respect for freedom of speech and the press, Trump displayed uncommon hostility toward the news media, denying access to his campaign events to media outlets that he perceived as antagonistic, threatening to sue journalists, and calling for changes to the nation’s libel laws that would hinder the ability of the media to report on matters of public importance.
  • Notwithstanding a post-Watergate norm that had previously been respected by candidates of both parties, Trump refused to release his tax returns. The public was thus unable to learn whether his financial connections to Russia helped explain his strange defenses of Russian leader Vladimir Putin.  The public was also unable to learn whether Trump was as successful a businessperson as he said he was, as well as the extent to which he has paid taxes and made charitable donations.
  • Notwithstanding norms of respect for judicial independence, Candidate Trump declared that a judge presiding over litigation to which he was a party should recuse himself because he has “an absolute conflict” on account of his “Mexican heritage” and Trump’s promise to “build a wall,” even though the case had nothing to do with the judge’s heritage or Trump’s immigration proposals.

Similar conduct continued post-election.  Notwithstanding norms of respect for, and respectful disagreement with, the judgments of American intelligence community, President-Elect Trump likened multiple intelligence agencies to “Nazi Germany” for unanimously agreeing that Russia directed the hacking of Democratic Party targets during the campaign and had repeated contacts with members of Trump’s campaign.

Since his inauguration, President Trump has disregarded one constitutional convention after another.  For example:

  • Trump failed to properly vet his executive order on immigration. Contrary to how executive orders are ordinarily crafted, the affected departments were not consulted.  As a result, the order is poorly drafted and legally vulnerable, and the rollout was egregious in the inhumanity it exhibited towards those taken by surprise.
  • Trump has continued to undermine public confidence in the judiciary. He has attacked the “ridiculous” decisions of “so-called” judges who have put his immigration order on hold.  He has also indicated that he will blame the judges in the event of a terrorist attack, causing concern that he may be setting up a narrative that he can use after an attack to rally a fearful public behind his disregard of judicial authority.
  • Trump has also continued to attack the media. In addition to regularly describing the mainstream media as being composed of “dishonest people” who spread “fake news,” he has also indicated that he will blame the media as well if a terrorist attack occurs because it has under-reported terrorist attacks.  He offered no evidence to substantiate that accusation, and there is none.
  • Trump seemingly takes public positions on difficult, controversial issues without first consulting experts. Consider, for example, his casual invocation of a one-state solution to the Israeli-Palestinian conflict, an approach at odds with decades of American foreign policy.  Similarly, he suggested without deliberation that he might question the “one China policy” that the U.S. has adhered to since the 1970s and then had to back down as a condition to talking with the Chinese government.
  • As the New York Times recently reported, Trump appears intent on excluding the intelligence community, the State Department, and other agencies from the policymaking process. Circling the wagons at the White House appears to have triggered a conflict with the excluded agencies whose escalation is evident in the apparently unprecedented number of leaks embarrassing to Trump or his advisors.
  • Most disturbingly, Trump utters falsehoods incessantly. All politicians make false statements, but Trump’s machine-gun frequency is so different in degree as to be different in kind.  For example, he has made false claims about the size of the crowd at his inauguration (it was far smaller than he alleged); the magnitude of his Electoral College victory (it was below average by historic standards); and voter fraud that he repeatedly says cost him the popular vote in the election (there is no evidence for his assertion that more than 3 million people voted illegally for Hillary Clinton).

To be sure, it can be difficult to determine the existence and scope of constitutional conventions, as well as when they should no longer be respected.  But it is unlikely that such inquiries can justify the conduct described above.  For example, American constitutional government will be in danger if others acquiesce in Trump’s apparent belief that he is entitled to his own facts.

Yet is it also a problem that Americans have little reason to believe almost anything Trump says.  Public trust is essential in a crisis regarding which only the President possesses full information and to which only the President can respond effectively.

Author profile

Neil S. Siegel is the David W. Ichel Professor of Law and Professor of Political Science at Duke Law School.

Citations

Neil Siegel, “The U.S. Constitution, Constitutional Conventions, and President Trump”  (OxHRH Blog, 2 March 2017) <http://ohrh.law.ox.ac.uk/norms-and-conventions-meet-donald-trump> [Date of Access]

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