Or is bringing it up on a legal blog just a standard dunk on our 79-year-old infant president, by someone who happens to be a law professor? Both, I think, albeit in a way that involves the tangled links between law, politics, morality, and psychology inherent in the conduct of discretion-exercising officials, including but hardly limited to Donald Trump and the four or five senior officials exercising de facto presidential power in the current regime.
Incidentally, I started writing this post on Friday. That was after Trump accepted the physical prize, but before he sent an insane missive–“insane” in, I think, basically the technical sense of the word–to the prime minister of Norway. If I may speak with uncharacteristic dryness, that letter hardly seems likely to shake my view. (Hat tip to Jonathan Adler, one of the two or three conservatives still actively writing at the Volokh blog. Its voice is needed and missed.)
I suppose questions like the peace prize business, which reduce to “What the fuck is wrong with this guy,” can be made to look more conventionally “legal” by asking about the Twenty Fifth Amendment. More generally, since Trump’s conduct on this has been so dishonorable, one could talk about impeachment. In a marginally saner alternate universe in which Maria Corina Machado became the new president of Venezuela, one might also muse about the Foreign Emoluments Clause. But, of course, Trump chose instead to install a leftist Chavista, Maduro official, and perpetrator of crimes against humanity as the governor of that state–in part, according to sources within his own regime, because the big baby was upset that she hadn’t already handed him the prize. (A side note: Although acting president Delcy Rodriguez is a Chavista, her personal relations with Chavez were fraught, because she refused to indulge him with cult of personality treatment. In the U.S., of course, such behavior would have disqualified her from service in the second Trump cabinet.)
Of course those questions are important. But they can also be a way of substituting law with a deliberately obtuse form of legalism. One can focus on such technical questions as an excuse or pretext. For example, one might want to discuss Joe Biden’s apparent senescence, or Trump’s flagrant corruption, but feel that one needs a technical legal hook like the 25th Amendment to do so–to make it not be “politics.” The self-imposed focus on legalism can also be a form of morally complicit cowardice. One may restrict oneself to technical questions, discussed in a technical fashion, not for reasons of precision or modesty but precisely to avoid having to say anything at all about larger and less technical matters, lest one risk something relatively trivial, like one’s career, influence, or friends, or the well-being of one’s family. Americans are cowardly, alas; American academics and intellectuals are more cowardly still; and American intellectual “conservatives,” to baldly misuse the word, are no exception.
As the Trump v. Illinois litigation shows, a technical legal question can be vitally important, and one should certainly thank God for those who focus on such questions in such circumstances. But when that question is part of a suite of questions one layer of which is the president threatening to invoke the Insurrection Act; and another, larger layer is the president adding the use of military force to his toolkit in his ongoing civil war against large portions of the United States–a war which has already has involved the creation of a large paramilitary force–then at some point you’re missing the legal forest for the trees. The question of what legal basis the executive has for purchasing a boot, and whether the funds ought to have been appropriated by Congress rather than drawn from a bank account in Qatar, is a good one and exactly why we need lawyers. Ignoring the fact that it is using that boot to stomp you in the face is bad lawyering just as much as it is terrible and essentially pro-corruption, pro-fascist, pro-authoritarian citizenship.
With Trump in particular, one cannot avoid the larger questions, or treat them as non-legal, by ignoring the things he says or does, treating them as jokes, trolling, or legally meaningless unless tied directly to concrete actions, or constructing fan fiction about what he really means. When he says that he’s furious he didn’t get a prize, he means it. He’s not using immaturity to cloak a cunning plan; he’s really just immature. When he says famous guys can do what they want–okay, he actually said “grab ’em by the pussy”–he means it, and has the friend list (and, no doubt, heavily redacted documents) to prove it. And when the guy who says he can grab ’em by the pussy says his own personal morality is the only guide to the conduct of the United States, which is the equivalent of holding up the Golden Gate Bridge with a strand of linguine, he means that too.
When he says these things, Trump is not gesturing at something deeper. Nor is he inviting or even leaving room for half-baked, inexpert, soon-to-be-falsified meme-based apologetics about Trump as a “shatterer” of international law “paradigms.” He simply means that his infantile anger over not getting a peace prize is not just a sufficient justification, but a good one, for the United States destroying its alliances, threatening its friends, wasting its time and money, and potentially endangering the lives of its brave “suckers.” (You will recall that this is what Trump, whose family has a 150-year history of evading military service, thinks of our war dead.) He means that he wants the peace prize and Greenland, in equal measure and for equally cogent reasons, and he’s gonna get them. I’m not a particular fan of Anne Applebaum. But surely she is right when she writes, more succinctly than I could and far more accurately than his rationalizers: “Donald Trump now genuinely lives in a different reality, one in which neither grammar nor history nor the normal rules of human interaction now affect him. Also, he really is maniacally, unhealthily obsessive about the Nobel Prize.”
As far as one can tell, Trump thinks there can be no legally interesting questions about any of this. His entire legal philosophy continues to be encapsulated in his 2019 statement: “I have an Article 2 where I have the right to do whatever I want as president.” If it serves his purposes to assert that “many people are saying” he can do something–like serve as president for life–then well and good. But I don’t doubt he is not much interested in that, and that he feels about as much contempt for those who offer clever rationalizations and arguments on his behalf as most of the people who concoct them feel for him.
The bottom line for me is that whether or not they reduce to straight legal questions, let alone justiciable ones, of course all these things–all the sludge and sewage with which Trump inundates the country daily–are constitutionally and legally relevant, as words and deeds alike. The broader the topic, the less likely that lawyers bring any value-added to the general discussion of any given topic. But lawyers and law professors may still be moved to speak up about such moments, simply because they, like other citizens, may be disturbed by the cumulative weight of evidence that the current regime is not only corrupt but corrupt and authoritarian, and that at least two-fifths of the roster of acting presidents, including the one who is currently most likely to be the next president, are not only authoritarian but fascist, with a healthy side dish of racism and antisemitism.
Things like accepting the physical prize and then publicly arguing that his rage at not having been awarded it is a substantial motivation for his desire to threaten and punish our political and military allies–an argument that is more childish but possibly slightly less ridiculous than “the national emergency is avoiding the national emergency“–suggest both the reason why such moments are constitutionally relevant and the limits of the standard language about ours being a nation of laws, not men. For any discretion-exercising authority–and that ultimately includes every oath-taker within the executive branch–character and virtue are always relevant. As long as “men” make decisions about the nature of our laws and how to enforce them, they matter just as much as laws do.
It’s also relevant here that Trump has such an exquisitely simple mind. The man is virtually all id and very little else, like an iceberg with 90 percent of its mass floating above the surface. And his id-iotic impulses are largely all connected, so that what he does in one area is often either directly related to or at the very least highly indicative of what he does and says elsewhere.
The core significance of the Trumpian acceptance of the peace prize, for example, is that Trump is entirely open to bribery and corrupt gifts and “tributes,” and will coerce them when they’re not forthcoming. And that fact alone was relevant to multiple actions by Trump and his regime just in the past week. It was relevant when the pretend-it’s-called-the-Trump Center announced that it would be hosting the premiere of the Melania Trump documentary, that film being the inconsequential byproduct of Jeff Bezos’s $40 million don’t-hurt-my-company preemptive bribe of her husband. It was relevant to his corrupt pardon of Julio Herrera Velutini. And it was ultimately relevant to his ongoing threats against Denmark, Norway, and other countries.
The list could easily double or triple even if one omitted all the bribes and coerced payments that no doubt happened last week that we just haven’t found out about yet. And the fact that he is so openly (and covertly) and hungrily corrupt, both for personal gain and for funds he can use without having to worry about antiquities like the separation of powers–both of these wants involve corruption, after all–is relevant to the Newspeak-named “Board of Peace.” It means that one has roughly every reason in the world to think that the Dr. Evilesque “one billion dollars” he is seeking from nations that want permanent membership in that body will, in small or large measure, be diverted to corrupt uses. To write apologetics about the “Board of Peace” without mentioning his penchant for bribery and his desire for a bottomless executive slush fund is to fail to write anything useful about the “Board of Peace” at all. It’s like writing a thoughtful commentary about revolutionary advances in the safe transportation and storage of valuable artworks, while leaving out the fact that the art collector who occasioned your essay is Hermann Goring.
One imagines that not everything Donald Trump does is illegal, although one need not exercise much imagination to suggest that Trump doesn’t care whether anything he does is legal, and that he actually believes that any law he might break would violate the Whatever I Want Clause of Article II. But how and why he acts, whether he is breaking the law or merely dishonoring it, is remarkably consistent. So yes, of course it is constitutionally as well as politically and morally relevant to talk about the chief executive doing something so base, dishonorable, and corrupt as coveting and then accepting Machado’s peace prize, let alone his grotesque follow-up. And it is equally the case that to evaluate him narrowly through the lens of a crabbedly legalistic focus is inadequate–and to do so deliberately, long after the poverty of that approach has been laid bare, is increasingly impossible to understand as anything other than a willful moral complicity in all of his words and actions and those of his enablers and underlings.