A Constitutional Crisis? Or Partisans Without Purpose?

You hear a lot of talk on Twitter these days about a constitutional crisis.

The thing about previous moments of constitutional crisis in the US is that they were never strictly about institutions and narrowly political questions; they were always about something socially substantive, something larger than the specific issue itself. The crisis provoked by the election of Lincoln in 1860, which led to secession and then the Civil War, was, of course, about slavery. The crisis of FDR’s Court-packing scheme was about the New Deal and whether the American state could be used to bring American capitalism to heel. Watergate was about the Cold War and a murderous US foreign policy.

What strikes me about the current crisis over Trump and the FBI, if that’s even what it is, is how far removed it is from the larger social questions that animated these previous crises. Obviously Trump and the GOP have a social base and are pursuing a social agenda, but the constitutional expression of the disagreement over the FBI and the Mueller inquiry bears no relationship to that social agenda. It’s not as if what Trump is really seeking is an FBI or Justice Department that’s willing to pursue his anti-immigration agenda; that Justice Department already exists. And it’s not as if Congress is releasing this memo in order to protect Russian interests; this is the very same Congress, in a lopsided bipartisan vote, that slapped heavy sanctions on Russia. And even if you think the real story behind the immediate controversy is the rise of an international oligarchy that’s removed from all political constraints, it’s not as if the Democrats have any great interest in restraining that oligarchy. Nor have the Democrats shown, prior to Trump, any great interest in restraining the presidency.

So the narrow political controversy that is so dividing the two parties and leading to talk of a constitutional crisis is completely stripped of almost all the larger questions that are said to currently divide our country. As Seth Ackerman said to me the other day, and today again on the phone, you hear this talk on Twitter and Facebook of a massive constitutional crisis, but when you go to the New York Times, the Wall Street Journal, and the Financial Times, you learn that the larger social and economic and even political world is just humming along, as if nothing’s happening. If there’s a constitutional crisis, the New York Times doesn’t seem to know about it. That’s quite different from the Watergate years, when every social conflict—over race, Vietnam, the economy, and the Cold War—was refracted through this massive showdown over a break-in at a hotel, which was then reflected in the day to day reporting.

And even if you think that what the right is really doing here is trying to salvage a presidency from what it fears is impending damage—and I do think that’s the most plausible interpretation of what the congressional Republicans are doing—you still have to confront the fact that in doing what they’re doing, they’re not salvaging their substantive agenda, but instead jeopardizing it. As the Boston Globe just reported this morning, at their annual retreat, the congressional GOP spent almost the entire time talking about “the memo” rather than any real agenda—whether immigration, taxes, healthcare, and so on—they wanted to pursue. So salvaging the presidency seems to be divorced from pursuing a substantive agenda.

Conversely, on the liberal side, you might say that Democrats and progressives see in this controversy everything that’s wrong with Trump—the lawlessness, contempt for institutions, and so forth—but even the most imaginative liberal would be hard pressed to see in the protection of the FBI from Trump’s meddling hand a path forward on immigration, Obamacare, sexual harassment, the alt right and racism, and any of the other myriad issues that make Democrats loathe Trump.

It’s almost as if we really are living in a perfect Schmittian moment, where the political issue that divides friends from enemies is not in any way related to factors and concerns that lie outside the political realm, but is instead wholly unto itself. In the same way Schmitt believed that the political divide of friend and enemy had to be removed from, or somehow transcend, whatever social or economic or religious or cultural question that might have originally underpinned that divide—so that the divide would be purely existential, a question of life or death of one’s own side, without any external concern for the substance of the divide—so does this current crisis seem to be almost entirely about itself. It’s a Court-packing scheme without the New Deal, a civil war without slavery, Watergate without Vietnam. Partisans without purpose—save partisanship itself.


  1. Donald Pruden, Jr., a/k/a The Enemy Combatant February 2, 2018 at 2:51 pm | #

    If the Republicans suffer a defeat in the D.C. based Civil War of Trump it will not because someone found the Constitutional basis to force upon the GOP that succeeds in restraining their transparently hypocritical project. It will only be because enough Americans screamed and hollered and did else-all to stop them.

    But I don’t see the present contention as Seinfeldian as Corey does. Quite frankly, I do fear for my for very life if the Republicans succeed in saving Trump and in keeping the Congress in GOP hands. If they win this, the rest of us are toast because with nothing to stop them….. There is NO reason to think that what lay ahead for us will be anything only as obnoxious voter ID and abortion being illegal in all fifty states. The Republican’s neoliberalism-on-steroids only masks what they REALLY want to do. Rewarding the “donor class” (what kind of democracy allows that to exist?) and cutting off the needy and befouling the environment are horrible policies. But these are only the start. A pre-New Deal America is their goal. The only question is how “pre” that pre-New Deal moment is that they are willing to settle for.

    If they win this — the mass deportations, as the opening act, will stand out as only be the most benign policy they will implement. Yes, I now think they are THAT bad because they have betrayed their real view of the rest of us.

  2. Raphael Sperry February 2, 2018 at 3:12 pm | #

    I think there in sa Constitutional Crisis that neither Democrats or Republicans acknowledge: the deeply minoritarian positon of the GOP coupled to their total control of the levers of power. Democrats are increasingly frustrated that despite winning the large majority of votes (for Congress as well as for President), they are locked into a powerless minority, and that the Republicans are using their minority control to try to lock in their dominance (as with the Garner nomination). However, the national mythology of the Constitution and the Founders, plus elected Democrats’ benefits from the status quo, prevents an acknowledgement of the systemic issues. Instead, all the frustration pours out at Trump, into a slowly building attempt to conflate his undemocratic and illegitimate mode of governing with his undemocratic and illegitimate election, but pusued with a deep-seated fear of rocking the status quo lest the participation of Democrats also become part of the question. So it’s easier to debate Russia and the campaign than the election or the other political issues, let alone the social issues that you noted, Corey.

    • Jon Margolis February 3, 2018 at 11:53 am | #

      Democrats did not win “a large majority” of votes for president. They won a modest plurality.

  3. Jason Smith February 2, 2018 at 3:45 pm | #

    I think that *is* the social crisis: the basic legitimacy of every branch of the government and specifically the Republican party that holds office because of the electoral college, gerrymandering, and voter suppression. It’s not picked up on in the NYT because they can’t quit “both sides”. While the US government hasn’t really ever been “legitimate” except under narrow definitions, I no longer believe it is legitimate by any definition. I used to be a stereotypical NYT reader, but now I consider it propaganda. They didn’t learn from the Iraq War and the Bush administration. It kind of took me by surprise, so I’m not sure what to do.

  4. Frank Wilhoit February 2, 2018 at 4:00 pm | #

    ? This one is about accountability under the law, full stop. It don’t get much bigger than that.

  5. Chris Morlock February 2, 2018 at 10:30 pm | #

    Just like Watergate, a big nothing. Just like Whitewater, a big nothing. Sabotage of Democracy with all sides willing participants.

    The Russian narrative a big nothing with no credibility. The memo is on the same level- FISA warrants issued for 10 legitimate concerns and 1 illegitimate one- who cares. Democrats paid for lies to fuel propaganda? No kidding.

    The last time any special counsel made any sense was the Iran Contra investigation under Larry Walsh in 1986. One count of obstruction of justice dismissed, hilarious.

    If it looks like it makes no sense, you are sane. Zero substance is right.

  6. mark February 3, 2018 at 5:00 am | #

    When I look at the Brexit vote, there too I see no animating force.

    British Conservatives seem to be fighting European Conservatives into a mutual confusion.

  7. Donald February 3, 2018 at 11:08 am | #

    There is a basic rule in American politics— the truly massive crimes, where by massive I mean in terms of morality, are not treated as scandals, but as policy debates at best. Torture isn’t a crime— it is something we oppose because it makes us look bad or doesn’t fit in with what America is supposed to be about. The Iraq War wasn’t a crime, but a blunder. Supporting the Saudis as they bomb civilians— well, this gets maybe one tenth of one percent the attention Russiagate receives. The media criticism group FAIR actually counted the number of times MSNBC covered the war in Yemen and our support vs the coverage of Russiagate and I forget the exact numbers, but our role in supporting the Saudi war got barely any coverage. Russiagate coverage is apparently nonstop.

    An American scandal is when members of one political party play a dirty trick against another. This has little to do with the rule of law. If it did, the courts would be jammed with officials involved in the torture policy. I think Russiagate is fairly typical. People in the US are trained to hyperventilate about such things and to ignore others.

    • Chris Morlock February 3, 2018 at 3:51 pm | #

      Well stated. Reagan sold arms to Contras through Iran. Bush Sr. was a drug lord and killed hundreds and thousands. Clinton tripled the prison population and starved hundreds of thousands. Bush Jr. Killed hundreds of thousands in a War based on the behest of Saudi investors just like his father and allowed companies to grit Trillions of dollars from the US economy.

      Instead we focus on punishing a break in to a hotel room for meaningless paperwork, a real estate deal that inexplicably ended with a blue dress, and now possibly one line item on a FISA warrant?

      And the only meaningful special counsel went nowhere when Reagan got off the hook. If this isn’t the silliest, most ridiculous expression of our government I have nothing else to say.

      • Donald February 3, 2018 at 4:39 pm | #

        Agreed. What frustrates me is that so many people who consider themselves well informed go along with this farce. If we ever became honest about the real harm we inflict on others our political culture would simply fall apart. You can’t talk about the rule of law and see Russiagate as a major scandal if you admit that Presidents, congresspeople and high ranking officials are guilty of or complicit in war crimes.

      • LFC February 3, 2018 at 9:31 pm | #

        @Chris Morlock

        Your references to Watergate as “a big nothing” are — well, they’re ridiculous. Watergate was not about a break-in at a hotel room — it was about Nixon spying on (and wiretapping) his political opponents, authorizing a unit whose job was illegal break-ins, and above all about obstruction of justice. (And it was connected to Vietnam, in more than one way, though at the time not all the connections were esp. clear.) Have you looked at the transcripts of Nixon’s tape-recorded conversations? There was an atmosphere of paranoia and lawlessness in the Nixon White House that is probably unequalled in the history of the presidency in the 20th century.

        I think you were not alive during Watergate, but at least read something about the episode before loudly asserting that it was about nothing. Whitewater might have been mostly trivia (I don’t recall all the details, frankly), but Watergate was a genuine big deal.

        This is one time when I will resort to internet acronym — SMH.

        • LFC February 3, 2018 at 9:47 pm | #

          p.s. actually no hotel room was involved. The Watergate was and is a fancy apartment plus office complex and the break-in was at the offices of the Democratic National Committee.

          The literature on the period and the episode is enormous. I’m sure Perlstein’s Nixonland deals w it. That might be one place to start. Some of the leading players — Archibald Cox, Leon Jaworski, Eliott Richardson, all now deceased I think — wrote memoirs, I believe, in some form or other. The Nixon people have memoirs too — John Dean, Blind Ambition; Colson; Erlichman. Pick any halfway sane book about Watergate, read it, and then come back and say the episode was “about nothing.”

          p.s. And for good measure, definitely read Ken Hughes, Chasing Shadows: The Nixon Tapes, the Chennault Affair and the Origins of Watergate.


          • Chris Morlock February 3, 2018 at 11:08 pm | #

            Thank god I was not alive for Watergate. Sorry, but it was a big nothing and started these insane partisan political wars. Not that it started with Nixon, it just became so public and toxic in that era. Where else have we heard problems associated with using the government apparatus to spy on opponents? FDR did the same and worse, whom I consider the greatest American President of all time. It seems to be the norm to act surprised that governments have intelligence apparatuses that politicians use for their own purposes? Stop the presses?

            “it was about Nixon spying on (and wiretapping) his political opponents, authorizing a unit whose job was illegal break-ins, and above all about obstruction of justice. ” Actually it was all about obstruction of justice, to say anything else would be to factually be wrong. The obstruction of justice was the legal issue in and of itself.
            The propaganda is a usefully tool, isn’t it, as we are basically being told now collusion is off the table and instead looking at obstruction of justice. It’s hilarious, the same games.

            Baby boomers head explosions over Watergate is nothing short of laughable. The only substantive use of the special counsel was with Reagan, a real situation of pure lawlessness and one that resulted directly in the deaths of tens of thousands. Ironic that it was the least effective of any of these political showboats. The fact that most Liberals tow the line for Watergate and have largely forgotten that meaningful investigation is another telling sign.

          • Donald February 4, 2018 at 9:24 am | #

            I wouldn’t say Watergate was nothing, but it is a perfect illustration of my point, which is that these mid level crimes where one political faction does something illegal against another faction are considered vastly more important than actual war crimes. Nixon also bombed Cambodia and imposed a fascist regime in Chile. Actions of that sort will result in criticisms and some emotional denunciations, but nobody is going to risk jail over it. It really is like getting Al Capone for tax evasion, except that people go further and talk as though tax evasion really was the worst thing Capone did. Nixon is remembered for Watergate and Chile is an afterthought some lefties will bring up.

            I assume this is true of most societies. If you are part of the governing elite, you see crimes committed against your faction as the worst possible crime and everyone in the society is supposed to agree. What your nation or tribe does to outsiders or even low ranking people within your society simply doesn’t matter as much.

  8. uh...clem February 3, 2018 at 4:55 pm | #

    This discussion seems very much to assume that Mueller’s investigation has any real interest in uncovering the truth (and the whole truth) about possible Russian interference in the last big election. In this nearly universal condition of deception and mystification I can’t believe it was ever conceived (even by the Bigwig himself) to be a truly probing inquiry. All the publicity about it is slowly (ever so slowly) building up to some kind of BIG findings. But when the final result finally arrives there will be no resolution and probably no more that a little wrist-slapping and all the expectant public will get is something like coitus interruptus.

  9. jonnybutter February 3, 2018 at 10:54 pm | #

    What I find remarkable about this sort of thing is how apparently powerful perfectly bad ideas are. Not ‘sort of’ bad ideas but *perfectly* bad ones – like the Schmittian ideas about politics CR talks about in the OP. There seems to be something mesmerizing about polarized good ideas. Perhaps bad ideas are initially rationalizable because they have an exact 1:1 relationship to good ideas. But then maybe the allure of the rot and stink and decadence takes over. Death and entropy give their ‘come hither’ look. I know this is not an original observation, but it’s still remarkable to see.

  10. LFC February 4, 2018 at 2:44 pm | #

    I understand the point you’re making but Watergate was more than just a crime vs a political “faction.” It was a crime vs the constitutional system. Was also connected to Nixon’s desire not to have his illegal/treasonous meddling in Vietnam peace negs before the ’68 election revealed.

    Of course the actions re Cambodia, Chile, and in the Bangladesh crisis were in some sense worse, but there was never any prospect that Nixon was going to be impeached for those. That wd have been the remedy btw — impeachment, not trial in a domestic court. It’s far from clear that a sitting Pres. can be indicted and tried in a U.S. ct for anything, let alone (arguable) violations of international law.

    • LFC February 4, 2018 at 3:02 pm | #

      p.s. The other point is that Cambodia, for ex., was a decision of policy, a bad and immoral one that resulted in a lot of death and suffering, but within a sphere in which presidents traditionally have fairly wide authority. Might have been a violation of intl law, might not. Not an open-and-shut case. You cd argue that virtually everything the U.S. did in Indochina from 1954 or 1963 (or pick yr date) onward violated int’l law. You could argue that, and it’s not an outlandish position, but no pres. was going to be impeached for it.

      Domestic crimes and infractions are usu. going to inflame more people than foreign-policy ones. Not the way it shd be, perhaps, but there it is.

      • Donald February 4, 2018 at 3:20 pm | #

        You aren’t really disagreeing with me here. You are correct that Presidents have wide leeway to engage in policies that in some cases are war crimes and that there was no chance that Nixon or any other Presidential culprit would be brought to justice. But that’s my point. When a crime gets big enough, it stops being seen as a crime.

        So Watergate was serious. Chris and I are in basic agreement, I think, but I wouldn’t put things quite the way he did. Watergate was big, but it didn’t involve people being bombed or tortured to death.

        Jon Schwarz ( spelling?) has a piece up at the Intercept praising the late Robert Parry. I think he helped uncover the 68 Vietnam scandal that you mention and Iran Contra and also has made an apparently strong case that Reagan was guilty of conspiring with Iran during the 80 election. I think those scandals start falling into the category of being too big to acknowledge until enough time has passed.

        We need some sort of pithy meme for what Chris and I are arguing, which is that once a crime gets big enough our system can’t or refuses to treat it as a crime.

        • Donald February 4, 2018 at 3:25 pm | #

          Gotta correct myself. Obviously Iran Contra was acknowledged at the time, but it was framed as a process scandal. That is, the crime was not that we were supporting yet another violent group which targeted civilians, but that it was a violation of the Boland Amendment. North even got to posture as the quintessential American man of action who lied to save lives and people took this guff seriously and said that good intentions didn’t justify breaking the law. I am old enough to remember this and to be frustrated by the framing of it.

          • Chris Morlock February 4, 2018 at 11:38 pm | #

            I would add another point about the recent expansion of surveillance powers granted by Congress, as Corey covered in an earlier blog post. At the same time we watch both sides accuse each other of using the intelligence apparatus to spy on each other and gain dominance, both sides universally expand the power of the President to do so? That had to be the most under-reported headline of the year, if Corey and Greenwald didn’t point it out we might not even know it happened.

            I don’t know how the metrics for these political processes are calculated, but it’s a dog and pony show. Some advanced political scientists might be able to quantify it in an actual equation. The vitriol is something to behold though, and for me the equation is the greater the emotional investment the less I can respect it as a serious issue.

      • Deadl E Cheese February 5, 2018 at 12:14 am | #

        And your comment shows how hollow the ‘our institutions are fraying!’ whining really is.

        Our institutions can’t stop incarceration rates exceeding unapologetic fascist states, can’t stop widespread lead poisoning, can’t stop income inequality not seen since Hoover, can’t stop the capitalistic healthcare system which kills more people than many of our actual wars, also can’t stop war crimes, can’t stop the MiC draining the budget, can’t stop the police state, and definitely can’t stop climate change.

        But what it CAN do is, say, punish Trump for taking Russian bribes or Nixon for hiring crooks to pad his electoral margins on an election he was going to win anyway.

        If it weren’t for nuclear weapons, my response would be ‘bully for liberal democracy and its toilet paper Constitution as conceived by some 18th century good-for-nothings. The only crime is that it hasn’t died out earlier.’

  11. W.Spackman (@tobeiconoclast) February 4, 2018 at 6:37 pm | #

    I first read the essay by Nils Gilman noted below about 6 months ago and keep going back to it for its extraordinary explanatory power. The fact that it was written nearly 4 years ago makes it seem prophetic. If you haven’t read it, its worth taking a look, particularly at the second part titled “The Plutocratic Insurgency” which I think may speak to Cory’s question: is there a socially substantive aspect to the current political crisis.

    I completely agree that when it comes to the international oligarchy both parties are equally vested. But it seems that the plutocratic insurgency that Nils describes fits the description of those who’ve now taken control of the US administration. They seek to go beyond monopolistic enrichment.

    “[T]he hallmark of the arrival of plutocratic insurgency is when the rich begin to revolt against paying taxes for public services they never plan to use. As these public services deteriorate in quality, the result is a self-reinforcing cycle whereby plutocratic insurgents increasingly see no reason to contribute anything to their host societies and, indeed, actively contest the idea that citizenship comes with economic responsibilities.”


  12. Nqabutho February 5, 2018 at 7:46 pm | #

    It’s the end-game of the “conservatives” that we’ve entered here. Alliance with the Kremlin is a last desperate move to hang on to power. (It’s always ultimately pure power play with them; rationality, intellectual honesty, objective truth, all the tools of an effective approach to human problem solving have always been beyond them.) Will orderly process be sufficient to enable a transition from our current political nightmare to normal adaptive functioning, or will the transition be necessarily catastrophic? So what are they fighting for, in the end? Are they afraid their freedom to lord it over the “lesser breeds” will end, and they just can’t survive in an egalitarian society? Journalists should ask members of the Republican party to express what they really think they’re doing with their political work (I won’t say “public service”). BTW, my prediction is that it will turn out that the (congressional) Republican party, incl. Paul Ryan, was complicit in the Russian election meddling; the hints are out there. (I’m not mentioning the long- term Russification of Trumpworld’s conventional mind.)

    • Chris Morlock February 6, 2018 at 6:00 pm | #

      Sounds familiar.

      “While I cannot take time off to name all the men in the State Department who have been named as members of the Communist Party and members of a spy ring, I have here in my hand a list of 205 that were known to the Secretary of State as being members of the Communist Party, and who nevertheless are still working and shaping the policy of the State Department.” – Joe McCarthy

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