BEGIN THE TRUMP RESISTANCE PLAN BEFORE IT’S TOO LATE

[This article fist appeared on billmoyers.com on January 9, 2017]

Note from Bill Moyers:  I’m pleased to officially welcome Steven Harper to our site. Steven retired early from a successful career as a litigator to write – and write he has done, including two acclaimed books — The Lawyer Bubble — A Profession in Crisis and Crossing Hoffa – A Teamster’s Story (a Chicago Tribune “Best Book of the Year”). He’s currently working on another, from which I’ve read some riveting excerpts, about the recent downfall of a New York law firm once led by New York State Governor and two-time presidential candidate Thomas Dewey. 

Steven Harper blogs at his site The Belly of the Beast (https://thelawyerbubble.com/), contributes regularly to the monthly magazine The American Lawyer, and is an adjunct professor at Northwestern University. When I read one of his short essays recently and some of his work on his current book project, I invited him to contribute a series of articles providing insights into current events. You can follow him here on our site and on Twitter at @StevenJHarper1. 

 

“Begin The Trump Resistance Plan Before It’s Too Late”

“Immediate necessity makes many things convenient, which if continued would grow into oppression…” 

— Thomas Paine, Common Sense (1776)

Ordinary citizens searching for the convenient satisfaction of immediate necessity are Donald Trump’s unwitting allies in an unseen war on democracy. It’s difficult to blame them. Most Americans are busy leading frenetic lives. In sound bites, they receive what passes for news; there’s no time to confirm its veracity. Politicians like Trump tell them what they want to hear; it pleases them. But quick solutions displace efforts to understand complicated challenges for which there are no easy answers.

Short-term convenience can produce long-run peril. Waiting for Trump’s America to reveal itself assures his victory and the republic’s loss. Perhaps more precisely, it could assure the loss of the republic. Successfully resisting the dangerous Donald Trump requires united action toward a common goal, thoughtful strategy, and flexible tactics.

The Goal

The objective of The Trump Resistance Plan (TRP) must transcend America’s politics and culture wars. Citizens of good will across the political spectrum will always disagree on matters of public concern. That’s healthy democracy.

The larger battle at hand pits democracy against an unknown fate. Throughout the world, populist nationalism is joining with authoritarian leaders to upend longstanding democracies. To repel this historic assault on our shores, the TRP proposes a goal that should find universal acceptance among Republicans, Democrats and independents.

For 230 years, two norms have anchored American democracy. One is that elections must be free of foreign interference. Another is that the presidency must be free of institutionalized corruption. Trump is undermining both. The TRP’s single goal is to preserve those norms.

The importance of the first is clear. America sought independence from the tyranny of remote rule. Foreign agents that subvert our most important democratic process – voting – are enemies. Any citizen giving aid or comfort commits treason. Trump’s belittling of U.S. intelligence conclusions that Russia hacked the election to help him win seems to qualify.

The second norm distinguishes the United States from countries where tyrants increase personal wealth and power at the expense of the people. That principle, too, has roots in the founding of our nation as a rebellion against a king and his corrupt government. Even the appearance that presidential acts are for sale is incompatible with democracy. Trump’s refusal to release his tax returns, liquidate his business holdings, and relinquish his finances to a truly independent blind trust violates that norm.

The Audience

No patriot can reasonably resist the TRP’s goal. After all, it’s not tit-for-tat politics designed to exact revenge for Republican recalcitrance during President Obama’s eight years, although some might prefer that myopic mission. Policy outcomes are important. But the current stakes are greater than the ebb and flow of typical political battles.

To succeed in eradicating two norms that underpin American democracy, Trump requires a compliant Republican Congress. Many GOP members opposed Donald Trump’s candidacy. They knew he lacked the experience and temperament to govern. Rationalizing that anything – even an erratic, irrational, and self-aggrandizing Trump – was better than Hillary Clinton, almost all of those detractors succumbed to his bullying and fell in line.

Now some of those same Republicans have learned that they were actually falling in line with Vladimir Putin. That alone should create a case of buyer’s remorse. But Trump can offer them a deal. They get his support for the hard-right policies that many Republicans have wanted for years. In return, all they have to give him is what he wants: fracturing the two central norms of American democracy. Perhaps some of them now realize that they are playing out a script for which only Putin, Trump and his minions know the ending.

Senator Majority Leader Mitch McConnell (R-KY) doesn’t care. He wants Trump’s deal. Sorting out conflicts of interest for members of what will become the wealthiest cabinet in modern history is a big job. The absence of a thorough Trump transition team vetting process makes it even bigger than usual. But McConnell is working with Team Trump to give the Office of Government Ethics – and the American people – the bum’s rush.

The Challenge

Putin’s stain on Trump’s election is permanent. Everything that he does as president comes with a taint. Everything. Likewise, his failure to eliminate his conflicts of interest means that every presidential act brings with it a presumption of corruption. Any member of Congress who supports legislation that he signs on any subject gets dragged deeper into his mud.

The two norms he seeks to destroy are threshold issues for the moral authority of his office. Whether his actions take the form of appointments, signing legislation, or issuing executive orders does not matter. All are fruit of a poisonous Trump election tree. Whether the subject is health care, tax reform, trade or anything else, the stench of election scandal and a presumption of corrupting financial conflicts of interest hang over everything he touches.

Surely a handful of Republican Senators can find sufficient strength to become profiles in courage. It takes only three heroes to flip his 52-48 margin in the Senate into a bulwark that protects liberty from his assault. Then he’d have to deal with those representing the majority of voters who wanted someone else in the Oval Office. That won’t eliminate his Putin election cloud or the taint of his presumed self-dealing, but it’s a start.

The Stakes

Shortly after the election, The New York Times’ editorial board wrote that it was “ready to support” Trump, “without denying the many disgraceful things he did and said to get elected, the promises he may or may not keep, the falsehoods he peddled that were either delusions or lies.”

Such compartmentalization is treacherous. Character is destiny. The country cannot allow Donald Trump’s character to determine its destiny. In his battle to obliterate the two norms without which democracy cannot exist, every conscientious citizen should force him and his minions to fight for every inch of ground.

No shot has been fired, but make no mistake: the war for America began on November 8.

Turn off your reality-TV shows, folks; this is real.

CONFLICTS AND RUSSIA, RUSSIA, RUSSIA

Donald Trump is trying to keep separate the two biggest controversies swirling around him — business conflicts of interest and the Russia connection. But they’re inextricably intertwined. Even so, he moves adroitly between them as a distraction device.

Roll the tape and follow the ball, as it bounces from conflicts to Russia and back again.

Conflicts

The conflicts between Trump’s worldwide business interests and his Presidential responsibilities have been news for months. He refused to release his tax returns that would reveal all of them, but intrepid journalists have persevered. From the federal government landlord owning the site of his new hotel in Washington, D.C. to his Trump Tower developments around the world, the sun never sets on the empire creating his conflicts.

November 18: Even the conservative stalwart editorial board of The Wall Street Journal says that liquidation of Trump’s businesses is the only way to solve those conflicts.

The same day, Trump diverts attention to his pick for National Security Adviser, Lt. Gen. Mike Flynn, who has appeared on Russian-owned television and sat with Putin at the network’s celebratory dinner in December 2015. (Flynn’s selection itself is a distraction that makes his other two picks of the day — Jeff Sessions (Attorney General) and Mike Pompeo (CIA Director) — look good, which they aren’t. That’s how the Trump process of normalizing the abnormal works.)

Russia

Saturday, December 10: The Washington Post reports that the CIA has reached a new stage in its investigation of Russian efforts to disrupt the presidential election. Russia had a specific goal: Trump’s victory over Clinton.

Over the weekend, bipartisan support grows for an investigation into Russia’s role in manipulating the election. On Sunday morning talk shows, two of Trump’s attorney-enablers, Kellyanne Conway (George Washington, JD, ’92) and Reince Priebus (U of Miami, JD, ’98), parse, deflect, and dissemble in lawyerly fashion the serious questions that the Russia issue raises.

Simultaneously, Exxon Mobil CEO Rex Tillerson — with long and deep ties to Vladimir Putin — emerges as the leading candidate to become Trump’s secretary of state.

Monday morning, December 12: Ten electors send an open letter to Director of National Intelligence James Clapper. Quoting from Alexander Hamilton, they emphasize their constitutional role to prevent a “desire in foreign powers to gain an improper ascendant in our councils.” The electors want to fulfill Hamilton’s charge that they elect a President “endowed with the requisite qualifications.”

The electors request a briefing on all investigations relating to connections between Trump (and his current and former aides) and the Russian government. Later in the day, Senate Majority Leader Mitch McConnell announces his support for Senate hearings on Russia’s interference with the election.

December 12, 3:30 p.m.: University of Chicago Law School Professor Geoffrey R. Stone publishes a powerful editorial calling for the Electoral College to do the job that the U.S. Constitution envisioned for precisely the situation that Donald Trump presents: deliberate over the legitimate question of whether Trump should be President. The Electoral College meets on December 19.

As of Tuesday morning, December 13, another 30 electors have added their names to the Clapper letter — and the number grows by the hour.

Conflicts

Late on December 12: Trump postpones his December 15 press conference on his conflicts plan. Meanwhile, he offers this meaningless assurance:

“Even though I am not mandated by law to do so, I will be leaving my businesses before January 20th so that I can focus full time on the Presidency. Two of my children, Don and Eric, plus executives, will manage them.”

Trump adds a sentence that he assumes no one will remember, but everyone should: “No new deals will be done during my term(s) in office.”

Tuesday, December 13: Trump announces his pick for secretary of state: Rex Tillerson, which takes us back to Russia.

Surprised? Why?

Flashback: During the presidential campaign, Trump praised Vladimir Putin. He rejected the intelligence community’s consensus that Russia was responsible for hacking into Democratic National Committee computers. And he surrounded himself with advisers whose Russian connections should have raised more red flags than they generated — Paul Manafort, Boris EphsteynCarter Page.

A day after the election that Trump lost by almost 3 million popular votes, Russia’s deputy foreign minister admitted to the Kremlin’s continuing communications with Trump’s entourage during the campaign.

Then came Lt. Gen. Flynn as NSA.

Secretary of State Tillerson

In Moscow, Carter Page cheered Tillerson’s selection. Page, formerly a Trump foreign policy adviser, was in Russia to meet with “business leaders and thought leaders.”

As for Tillerson, The Wall Street Journal reports his long and deep relationship with Putin that began in 1999:

“He has had more interactive time with Vladimir Putin than probably any other American with the exception of Henry Kissinger,” John Hamre, a deputy defense secretary during the Clinton administration and president of the Center for Strategic and International Studies, a Washington think tank where Tillerson is a board member.”

In 2012, Putin awarded Tillerson the country’s Order of Friendship, one of Russia’s highest civilian honors. Tillerson favors removing sanctions that the United States imposed after Putin annexed the Crimea. Those sanctions have halted some of Exxon Mobil’s big projects in Russia. If Trump/Tillerson get those sanctions lifted, the company could reap billions of dollars.

End Game

Perhaps Trump is running out the clock on his conflict of interest problems until after the Electoral College meets on December 19. Or maybe his Russia problems are now so huge that he can’t weather another round of criticism over plainly inadequate steps to deal with his business conflicts. Or maybe Trump’s actions are best viewed through the prism of distraction from the biggest issue: the hair on the head of American democracy is on fire from a match that Putin lit.

By the way, if you wonder what the Romney/Trump date night interview for secretary of state was all about, the answer comes from a line in the movie, Superman II: “Kneel before Zod.

The line applies to other prominent Republicans whom Trump ridiculed repeatedly and who now grovel at the feet of their new emperor who still lacks clothes. Yes, I’m looking at you, Carly Fiorina. After Trump publicly degraded you and all women, you called him out. But you now call his moves “brilliant,” as you audition to become his director of national intelligence.

And you, Rick Perry. You called Trump a “cancer on conservatism.” But now seek to be his energy secretary — a department you promised to abolish if you’d won the presidency.

And you, Paul Ryan. Throughout Trump’s campaign, you admonished him and distanced yourself from his vile words and deeds. He retaliated by calling you a weak and ineffective leader. But now you grin while giving Trump another do-over: “We’re fine. We’re not looking back…That’s behind us, we’re way beyond that.”

We’re not way beyond anything. The battle for America’s soul has barely begun.

TRUMP AND THE RULE OF LAW: ECHOES OF NIXON

Two months ago, I wrote an essay, “Trump and the Rule of Law.” I didn’t contemplate that it would evolve into a never-ending series on the subject. This is part three.

Perhaps history doesn’t repeat itself but sometimes it rhymes.

“We must maintain law and order at the highest level or we will cease to have a country, 100 percent. We will cease to have a country. I am the law and order candidate.” – Donald Trump, July 11, 2016

“Law and order is in the interest of all Americans. Let’s just make sure that our laws deserve respect; then, they will be respected by all Americans.” – Richard M. Nixon, 1968

To win the 1968 election, Richard Nixon exploited fear, racial unrest and an unpopular war to exacerbate division. His message resonated with alienated voters who yearned for a bygone time that looked better in hindsight than it had ever been. He offered himself as uniquely capable of fixing anything and everything that was broken.

Shared Disdain For The Rules

Although the differences between 1968 and 2016 are enormous, Trump’s campaign manager Paul Manafort boasts that his candidate will continue using Nixon’s “law and order” playbook. But the most startling similarity between Nixon and Trump is the divergence of that rhetoric from their common disdain for the rule of law.

Nixon confined his dangerous views to private conversations with confidants; Trump shouts them loudly for public consumption. Those who should be paying closest attention have lost themselves in cynical calculations of personal political self-interest.

“He’ll have a White House counsel,” says Senate Majority Leader Mitch McConnell in explaining why he continues to support Trump. “There will be others who point out that there’s certain things you can do and can’t do.”

Senator John McCain rationalizes his tolerance for Trump’s role as his personal abuser-in-chief: “I still believe we have the institutions of government that would restrain someone who seeks to exceed their constitutional obligations. We have a Congress. We have the Supreme Court. We’re not Romania.”

Senators McConnell, McCain and other Republicans refusing to disavow Trump could benefit by spending some time with President Richard Nixon’s former White House Counsel John Dean.

Magical Thinking Has A Cost

On March 21, 1973, Dean told the President:

“[T]here’s no doubt about the seriousness of the problem we’ve got. We have a cancer within – close to the presidency, that’s growing. It’s growing daily. It’s compounding. It grows geometrically now, because it compounds itself… And that is just – and there is no assurance – ”

Nixon: “That it won’t bust.”

Dean: “That, that won’t bust.”

Nixon: “True.”

A month later, Nixon fired him. It takes little imagination to envision Trump delivering that line with gusto: “You’re fired!” While Nixon fiddled with the levers of power for the next eighteen months, the country burned. The United States languished in its most severe recession since World War II and the business of governing slowed to a crawl.

Reticent Republicans

Then as now, prominent Republicans were slow in reacting to Nixon’s attack on the rule of law. Eventually, a unanimous Supreme Court ordered release of Nixon’s incriminating White House tapes and the House of Representatives passed articles of impeachment. Only then did key Republican leaders, including Senator Barry Goldwater, urge Nixon to step down because – at long last – there were enough Republican votes in the Senate to join Democrats in convicting him.

Nixon lost his fight with Congress and the courts. But the margin was thin and for a year-and-a-half the country suffered immeasurable collateral damage. A search for the origins of current public distrust in government could start with the events culminating in Nixon’s 1974 resignation.

Unabashed Lawlessness

Nixon thought he was above the law, but didn’t admit it publicly until three years after leaving office: “When the President does it, it means it’s not illegal.”

Trump’s similar revelations occur in real-time. Even conservative legal commentators express concern for his unwillingness to acknowledge the limits of presidential power. As University of Chicago/NYU Law Professor Richard A. Epstein puts it, “I think Trump doesn’t even think there’s an issue to worry about. He just simply says, whatever I want to do, I will do.”

The Complete Makeover That Never Will Happen

On April 21, 2016, Trump campaign chairman Paul Manafort assured Republican National Committee members that Trump’s antics during the primaries were an act.

“That’s what’s important for you to understand – that he gets it, and that the part he’s been playing is evolving now into the part you’ve been expecting… Fixing personality negatives is a lot easier than fixing character negatives. You can’t change somebody’s character, but you can change the way a person presents himself.”

Since then Manafort’s candidate has devolved in every way.

It Starts And Ends With The Patient

Who was to blame for all of those outbursts? Certainly not Trump himself. On June 20, campaign manager Corey Lewandowski took the fall.

“We’re going to go a little bit in a different route from this point forward,” Trump said. “A little different style.”

Since then Trump has:

  • Described Great Britain’s vote to leave the European Union as good for his Scottish golf course business;
  • Called Senator Elizabeth Warren a racist;
  • Described Jews as unduly sensitive about a campaign tweet slamming Hillary Clinton as corrupt – with dollar bills in the background and the Star of David in the foreground;
  • Invited Putin to hack the computers of Democratic rivals;
  • Smeared the Muslim religion with innuendo about a Gold Star mother of a veteran who’d died saving his fellow soldiers; and
  • Assured the world that Putin is “not going into Ukraine, OK, just so you understand. He’s not going to go into Ukraine, all right? You can mark it down. You can put it down. You can take it anywhere you want” — even though most of the world knows that Putin is already there.

At public events, his audiences cheer. Richard Nixon knew what that was about: “People react to fear, not love. They don’t teach that in Sunday school, but it’s true.”

Where’s The Bottom?

Trump’s apologists cling to the self-deceptive notion that he’s just rejecting political correctness. Here’s the truth: almost daily he says something that is simply wrong — factually, legally, and/or morally. Often he hits the trifecta with a single shot. It’s not a matter of political correctness. It’s a matter of correctness — period.

Manafort misdiagnosed his candidate’s underlying problem as something distinct from character. Trump’s personality is an extension of his character. At age 70, he remains what he has always been and always will be. But don’t take my word for it; take his.

As Trump told the press during his Memorial Day rampage against another frequent Nixon target – the media: “You think I’m going to change? I’m not changing.”

He means it. When it comes to character, decency and respect for the rule of law, Donald Trump is Richard Nixon on steroids with a megaphone and no internal filter. What we see is what we will continue to get until November when the worst reality show ever comes to an end.

ONE LAWYER’S DILEMMA

Paul Manafort is campaign chairman and chief strategist for Donald Trump. He also has a law degree from Georgetown. That combination has landed him in a tough spot.

The J.D. from Georgetown means Manafort can’t plead ignorance about the significance of Trump’s escalating attack on the rule of law. As The New York Times reported recently, reliably conservative legal scholars express deep concern over Trump’s failure to acknowledge the limits of presidential power. Uniformly, every high-level Republican has repudiated Trump’s criticisms of Judge Gonzalo Curiel, the Indiana-born federal judge presiding over the cases against Trump University:

Senator Mitch McConnell: “I couldn’t disagree more with what he had to say.”

Representative Paul Ryan: “I completely disagree with the reasoning behind that.”

Former majority leader Newt Gingrich, who has made no secret of his vice-presidential ambitions on a Trump ticket: “This is one of the worst mistakes Trump has made. I think it’s inexcusable,”

And that backlash came before June 5, when Trump added all Muslims to his growing list of “possibly” biased judges who can’t give him a fair shake in a courtroom because their ethnicity collides with his most vile public policy pronouncements.

Manafort Knows Better, Even If His Client Doesn’t

Trump is no stranger to litigation. According to USA Today, his personal and business interests have been involved in more than 3,500 state and federal legal actions — 70 of them filed after announcing his presidential bid. Playing a game that’s worse than identity politics, he’s now engaged in a full frontal assault on the integrity of the judiciary for obvious personal gain in a private lawsuit. At best, it’s unseemly. At worst, it’s could be an unlawful attempt “to influence, intimidate or impede” a judge “in the discharge of his duty” (18 U.S.C. Section 1803) and/or “obstruct the administration of justice” (18 U.S.C. Section 401).

At Georgetown, Paul Manafort learned the legal rules governing every litigant’s right to challenge a judge’s fairness. Prevailing on a motion to recuse requires a factual showing, not a racist rant. The law is well settled that ethnicity or national origin is not a valid basis for disqualification. In fact, a recusal motion on those grounds would be on the receiving end of sanctions for frivolous pleading. It’s no accident that Trump’s outside lawyers — led by the widely respected Daniel Petrocelli at O’Melveny & Myers — haven’t pursued that path.

Enter Manafort

When Trump hired Manafort in April, Senator Ted Cruz was collecting more than his share of delegates from states where Trump had won the popular vote. Trump complained that the system was “rigged,” “corrupt” and “crooked.” Manafort’s assignment was to corral Trump delegates and keep them in line to avoid a contested convention.

In 1976, Manafort was involved in a similar task. Only two years out of law school, he was was President Gerald Ford successful “delegate-hunt coordinator” for eight states during Ronald Reagan’s attempt to wrest the nomination. After Ford lost the general election, Manafort spent three years working for a private law firm in Washington, D.C.

When Reagan prevailed in 1980, the president nominated him to the board of directors of the Overseas Private Investment Corporation — the government’s development finance institution. At that point, what would become Manafort’s lucrative career began. Since 1981, he’s been a lobbyist and consultant, sometimes for notorious international clients.

Master of Extreme Makeovers

In 2005, Manafort became an adviser to Viktor Yanukovych, whose political career seemed over after losing the Ukranian election for prime minister. With the help of Manafort, Yanukovych won in 2010 by exploiting popular frustration with government, exacerbating cultural divisions within the Ukranian electorate, and railing against NATO.

Sound familiar? History may not repeat itself, but sometimes it rhymes. Cue the Trump assignment.

His Latest Client Makeover

On April 21, 2016, newly appointed Manafort assured members of the Republican National Committee that Trump’s rhetorical antics were just an act for the crowd.

“That’s what’s important for you to understand – that he gets it, and that the part he’s been playing is evolving now into the part you’ve been expecting…”

A month later, Manafort had accomplished his delegate mission and received a new title: campaign chairman and chief strategist. Since then, Trump’s attacks on the rule of law have intensified. It now appears that, in contrast to Manafort’s April 21 prediction, the only thing that Trump has “played” is Manafort as he dutifully lined up establishment Republicans who fell in line.

As uncomfortable as Trump’s statements have made those establishment Republicans, none has stepped forward to defend their candidate’s recent outbursts. None has repudiated his or her endorsement, either. Even as they decry Trump’s comments as deplorable, they implicitly suggest that his problem is speaking vile thoughts, not that he has them.

What Could Be Worse?

The same supporters rationalize their continuing support of Trump by assuring themselves that Hillary Clinton as president would be worse. They can’t possibly know that. Senator Bob Corker said that Trump — who turns 70 this month — “is going to have to change.” But change to what? Has anyone ever tried to change a 70-year-old billionaire’s fundamental beliefs, character, or behavior? Besides, Trump has made it clear that he has no desire to change. His approach has worked.

Corker’s position is a triumph of hope over reality. As for Trump’s positions, beyond divisive and destructive rants and branding tag lines –“We’ll make America great again” and “We’ll build a wall” — no one can state with confidence what they will be in five minutes, much less what they would become if he won the presidency.

Which takes us back to Paul Manafort, who assured RNC members in April that Trump was evolving. He went on to say, “Fixing personality negatives is a lot easier than fixing character negatives. You can’t change somebody’s character, but you can change the way a person presents himself.”

Either Manafort shares responsibility for encouraging Trump’s subsequent evolution, or he has an uncontrollable client. If it’s the former, he has put his candidate and his country on a treacherous course; he knows that from his legal training at Georgetown. If it’s the latter, his Trump-tarnished reputation will continue to deteriorate as he remains the campaign’s top strategist. Either way, he’s already lost. And so has the country.