Richard Epstein from the US: Presidential Chaos

The Trump White House is in a perpetual state of dysfunction and chaos. Trump kicked off the past week with a series of attacks on Jeff Sessions, his Attorney General and long-time loyalist, for recusing himself from the ongoing investigation of Russia’s interference with the 2016 election. There are tricky arguments, pro and con, on whether Sessions should have removed himself the investigation. But nothing can excuse Trump’s barrage of immature and abusive tweets against a key member of his own team. The upshot is an impasse in which Sessions cannot resign and Trump dare not fire him.

The President followed his Sessions tirade with an ill-considered tweet haphazardly announcing a ban on transgender people serving in the military, which everyone from a blindsided James Mattis on down regarded as a gratuitous insult to many transgender soldiers who have served with distinction. His tweet of course carries no legal consequence, but it puts everyone in government in limbo until the President either issues that foolish order or is, once again, talked off the ledge by his few remaining sensible advisors.

Then Trump appointed the pugnacious and vulgar Anthony Scaramucci as his communications director, who gave a profanity-laced interview with the New Yorker’s Ryan Lizza before being ousted from his role at the urging of Trump’s new Chief of Staff, John Kelly. Still, Scaramucci’s appointment was a major disruption. It set in motion the resignation of Trump’s beleaguered Press Secretary Sean Spicer and the sacking of Reince Priebus as Chief of Staff. We can expect more speeches like Trump’s over-the-top political diatribe at the Boy Scouts jamboree, which prompted Michael Surbaugh, the Scout’s CEO, to issue an apology to the boy scouts and their families for the President’s misbehavior.

All of which raises a question: How many adults are currently in residence at the White House to keep the President in line? Unfortunately, Trump’s own intellectual shortcomings and personal insecurities leave him without any secure internal compass on matters of policy. His clueless leadership was evident in the recent fiasco with Obamacare, where he could not explain how the implosion of the exchanges and the breakdown of Medicaid services required an immediate response. His lack of self-confidence in turn prevents him from including experienced old-hands like John Bolton or Karl Rove in his inner circle, where infighting between the Steve Bannon and Jared Kushner factions are slowing down the process of key government appointments and leading to huge political gaffes like Trump’s first immigration order. There’s too much self-inflicted harm.

When I first raised the question this past February of whether Trump should resign in the aftermath of his bungled immigration order, a plausible response was that hasty judgment overlooked the possibility that even Trump could grow on the job. But five months later, the verdict has to be that he is incorrigible. What is wrong with the Trump administration is not the administration, but Trump himself; he should go now. The longer he stays in office, the longer he debases the presidency and diminishes the political prospects and moral legitimacy of the Republican Party. He squeaked through an electoral college victory in 2016, running against Hillary Clinton, whose own personal baggage, political acumen, and policy weaknesses were worse than his own. But now that recent polls put his approval rating at 38.4% and his disapproval rating at 55.7%, it’s likely that he will be too disliked, and too well-known to repeat his come-from-behind victory in 2020 against any remotely credible Democratic candidate.

Ironically, what Democrats should fear most is a Trump resignation that could force them to run against a credible Mike Pence, the one person that Trump cannot fire. Pence will not be guilty of any Trumpian gaffes; he has consistent policy judgments and knows how to work with people, not just intimidate and abuse them. The decision to pressure Trump to resign from office is not the same choice that Republicans had to face in November 2016, when the alternative was Hillary Clinton. The best estimate is that Pence would follow through on Trump’s basic program with the two notable exceptions of trade and immigration, where the President’s current policies are questionable anyway. A President Pence would put the Republican Party in a far better position for the mid-term elections in 2018 and for the next presidential election in 2020.

But it is difficult to force any such switch without a political bloodbath. It would be a mistake of cosmic proportions for the Republicans to try to engineer the impeachment of Trump, which would lead to an internecine war in which everyone loses. There is to date nothing that’s come of the alleged charges of obstruction of justice resulting from Trump’s ham-handed effort to get Comey to back off the investigation of Michael Flynn; nor, as the media now acknowledges, is there anything of substance in the charges of electoral collusion with Russia. Impeachment should not be used for naked political purposes.

Similarly, it would be a political disaster for the Republicans to let the Democrats hound Trump from office and thereby seize control of the political agenda. To regain their footing, the Republicans should make it clear that they stand behind many of the signal achievements of Trump’s term to date.

In this schizophrenic world, I have strongly supported Trump on his decision to take a tougher stand on foreign affairs in the Middle East and elsewhere, where the passive Obama policies led to an enormous erosion of American influence and credibility around the world. I also backed his decision to withdraw from the ill-designed Paris Accords, even as he managed to mangle the argument by making it turn, not on the science, but on his insistent and obnoxious America First views. I also strongly supported his choice of Neil Gorsuch for the Supreme Court. Trump was also right in his decision to let the construction of the Keystone and Dakota Access pipelines go forward after the dubious stalling tactics of the Obama administration. And he receives high marks for the efforts of EPA head Scott Pruitt to curb the various excesses of the Obama Environmental Protection Agency, and for appointing Betsy DeVos to run the Department of Education, where she is beginning to rein in the Obama-era hostility to charter schools and vouchers.

And finally, it is absolutely imperative that the Republicans make clear that a Pence Administration will keep in place virtually all of the excellent appointees that have been placed throughout the executive branch, all of whom are beginning to undo the mischief that the Obama administration did in virtually every public policy area it touched.

One principal obstacle to replacing Trump is that the economy has made substantial progress under the President, as evidenced by the sustained increase in stock prices since his election. I have no doubt that a Clinton presidency would have resulted in a rash of ill-considered initiatives that would have driven the various market indices further down. But there are two decisive objections to giving Trump full credit. The first is that much of these gains would have taken place if Trump had done nothing at all upon his election. The unwise positions that Clinton embraced on everything from tax reform to police misconduct would have led to an unsustainable increase in economic stagnation and political strife. Electing anyone other than her thus gave the nation a much needed bed rest from the endless social and economic initiatives of Obama. Likewise, the Trump administration wisely slowed down the Obama administration’s investigations into schools, universities, and businesses on everything from alleged financial irregularities to supposed instances of institutional indifference to sexual harassment. The less fevered pace of government meddling has given these institutions breathing room to concentrate on their own missions, instead of fending off the feds.

Of course, sensible administrative and legislative action is needed to complete the undoing of Obama-era excesses. Trump cannot bring that about. Right now, the Republican case against Trump is in the whispering phase, as no one wants openly to state the obvious. But it is time for cooler heads in the Republican party to have a heart-to-heart with a stubborn President Trump, to create the needed political momentum for him to leave office—for the good of his party, and, most importantly, for the good of the nation. 

Professor Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago.  This article was first published by the Hoover Institute's Defining Ideas.