From Constitutional Rot to Constitutional Crisis

A previous discussion here focused in the concept of what exactly constitutes a constitutional crisis. To help define the concept, experts cite constitutional crisis and the related concept they call constitutional rot. The former includes legal but hyper-partisan hardball politics. The latter encompasses situations where the constitution is has literally failed and the rule of law disintegrates.

Constitutional rot

Constitutional rot (CR) arises when norms that held power in check fall, partisans play constitutional hardball and fair political competition comes under attack. We see this now. For example, it was constitutional hardball by the Mitch McConnell to ignore President Obama's Supreme Court nomination of Merrick Garland. In CR, politicians favor short-term political gains over long-term damage to the constitutional system. As CR progresses, the political system becomes less democratic, e.g., as partisans pass laws to limit voting by the political opposition. State power becomes less accountable and less responsive to the public, while politicians become more beholden to backers who keep them in power. In essence, the country drifts into some sort of usually corrupt authoritarian despotism or oligarchy.

Constitutional crisis

A constitutional crisis (CC) is rare among nations that operate on a constitutional basis. There are three sources of CC. In the first source of constitutional failure, a CC arises when politicians and/or military officials announce they will not obey the constitution any more. That happens when politicians and/or military officials refuse to obey a court order. Once refusal to adhere to constitutional rules has occurred, the constitution has failed.

The second kind of CC arises when many people refuse to obey the constitution. In these scenarios, there can be street riots, or, states or regions try to secede from the nation. This involves "situations where publicly articulated disagreements about the constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests: people take to the streets, armies mobilize, and brute force is used or threatened in order to prevail."

The third kind of CC arises when the constitution prevents political actors from trying to prevent an impending disaster, which is a very rare event. In these situations, courts usually dream up some way to get around constitutional constraints. The problem with that tactic, is that it usually leaves in its wake a rancid precedent that authoritarians and tyrants can later use to oppress political opposition and dissent. An example is the United States Supreme Court case Korematsu v. United States, 323 U.S. 214 (1944). That very bad decision defended exclusion of Japanese Americans from the West Coast Military Area during World War II. Korematsu has widely been criticized as bigotry and a stain on US law.

On the cusp of a constitutional crisis

The New York Times is reporting that the Trump administration is refusing a court order to turn over 20 emails the NYT demanded under a FOIA request. The NYT filed the demand to get information about Trump administration escapades with Ukraine. The NYT writes:

“WASHINGTON — The Trump administration disclosed on Friday that there were 20 emails between a top aide to President Trump’s acting chief of staff and a colleague at the White House’s Office of Management and Budget discussing the freeze of a congressionally mandated military aid package for Ukraine. 

But in response to a court order that it swiftly process those pages in response to a Freedom of Information Act, or FOIA, lawsuit filed by The New York Times, the Office of Management and Budget delivered a terse letter saying it would not turn over any of the 40 pages of emails — not even with redactions. 

‘All 20 documents are being withheld in full,’ wrote Dionne Hardy, the office’s Freedom of Information Act officer. 

A report on Thursday by the legal policy website Just Security added further fuel to the controversy by revealing what was under some, but not all, of the deletions. The website said it had been shown some of the emails in unredacted form, including an Aug. 30 message from Mr. Duffey to a Pentagon budget official stating that there was ‘clear direction from POTUS’ — an acronym referring to the president of the United States — ‘to continue to hold’ the Ukraine military assistance.”

The White House asserts that the emails cannot be turned over to the NYT because that would “inhibit the frank and candid exchange of views that is necessary for effective government decision-making.” Another thing it would very likely do, is provide additional proof that Trump and his corrupt administration broke the law and committed impeachable acts in dealings with Ukraine. That is the real reason the president is withholding the documents.

This is not hyperbole: America is on the razor edge of a true constitutional crisis. The president openly refuses a court order to hide evidence of his corrupt and illegal actions related to Ukraine. Not only has our corrupt president attacked Iran (and, indirectly Iraq) twice in two days to try to deflect attention from disclosures of his illegal and impeachable actions in office, he also willingly put America on the cusp of a true constitutional crisis just to serve his personal political interests.

This case will probably be appealed to the Supreme Court. If that court allows the president to keep the documents hidden from the public, the crisis will be avoided. If not, then the president can decide to thrown America into full blown crisis or to comply and avoid a constitutional failure.

As discussed here yesterday, when a person loses trust in someone or an institution, then that person’s mind is no longer constrained by norms that protect the person or institution to some extent from unreasonable beliefs and reality-detached conspiracy theories and opinions. Given the president’s undeniable track record of making thousands of false and misleading statements to the American people, there is no objective basis in evidence for any trust in anything the president says or does. The president deserves no public trust because he earned no trust.

That's not some unhinged or reality-detached conspiracy theory. It is a logical conclusion of truth based on undeniable empirical evidence in the public record.