America’s Current Extraconstitutional Republic

How Trump’s presidency has taken the presidency out of the bound of the Constitution and puts America into dangerous, uncharted territory, and all to the delight and design of Vladimir Putin; whatever the outcome of today’s midterms, there will remain much work left to do to restore America’s true constitutional (small-r) republican system.

Originally published on LinkedIn Pulse November 6, 2018

By Brian E. Frydenborg (LinkedInFacebookTwitter@bfry1981), November 6th, 2018

AMMAN — With the unprecedented publication by The New York Times of an anonymous op-ed by “a senior official in the Trump Administration” hot on the heels of the release of preview excerpts from legendary journalist Bob Woodward’s upcoming damning exposé on the Trump White House—both showing that top Trump officials are deliberately undermining and ignoring him for, in their view, the good of the nation—something is clear that is not being acknowledged yet, even two months after these events, in the major coverage of these unfolding developments:

The presidency of the United States of America is, and has been pretty much since the beginning of the Trump Administration, operating extraconstitutionally, that is, outside the bounds of the U.S. Constitution. In American history—in the modern era, anyway—the only times we have been in waters this uncharted and this dangerous from a constitutional perspective were the final year-and-a-half of the Woodrow Wilson Administration from 1919-1921 and the very last days of the Richard Nixon Administration in 1974.

In the first instance, after Wilson became essentially medically incapacitated later in 1919, his wife basically secretly took on his duties as president behind the scenes. As Joel Goldstein noted in 2014 in the scholarly journal Politics and the Life Sciences, while “[t]he length of Wilson’s disability has been debated,” he quoted an assessment by historian John Blum that seemed to be broad enough to reflect much of the range of opinion: “for a month the United States had no President; for many months the country had only a shell of a President.”

In the words of Goldstein, the situation clearly demonstrated that in terms of presidential succession under certain conditions, “the Constitution was ambiguous in…numerous material ways.”

Decades later, looking back at this situation was a significant inspiration for the adoption of the Twenty-fifth Amendment, providing a path to transfer presidential authority away from a president who is “unable to discharge the powers and duties of his office,” as well as to transfer (vice) presidential authority under other circumstances.

In the second instance, as the curtain was coming down on Nixon’s presidency in the face of coming impeachment amid the Watergate scandal, and even while Nixon was still legally the president, senior officials were prepared to ignore and defy him and did so. The crisis that forced Nixon to resign was largely a result of reporting by the duo of Bob Woodward and Carl Bernstein, in large part armed with information from an anonymous senior Nixon Administration official known then as Deep Throat and later revealed to be Mark Felt, then-Associate Director at the FBI, not unlike some of the officials working against Trump today, actions also revealed by Woodward.

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A major reason the Twenty-fifth Amendment was adopted was to make sure a clear Constitutional order would continue even in certain rare and/or extreme circumstances.

The Roman Republic had a rarely-held office called the dictator that was only appointed in emergencies and only to fulfill specific mandates and/or last for a specific period of time and generally no longer than six months. It was essentially a way to temporarily put aside the Roman Republic’s normal working order while still preserving the Republic’s overall constitution, allowing both the law to be preserved during emergencies and regular order to be restored after them, with both happening under the same constitution. Marc de Wilde, writing for the journal History of Political Thought, noted that this system worked quite well for some three centuries as, in his view, during that period, “the dictatorship was never abused and turned against the constitution” (though, after a long hiatus, the rare later iterations proved far more problematic).

But the U.S. Constitution does not have the same flexibility. And what is happening now places the current U.S. government outside of the prescribed range of the functioning Constitution.

With the recent revelations, some have called the moves against Trump by his own people a kind of coup (including Woodward); in fact, it is impossible to argue that this is anything but that: the president leads the Executive Branch and is the Commander in Chief, and while, as I noted over a year ago, the system was designed by the Founding Fathers to empower officials under the president to defy him if he was violating the Constitution or the law, if the president gives an order that is not such a violation and he is still defied, the we are operating outside the legal bounds of the U.S. Constitution. While Trump is not medically and physically incapacitated like Wilson was for over a year-and-a-half, the nation is essentially being governed throughout Trump’s presidency like it was, briefly, in the final days of Nixon’s presidency, with senior officials under the president deeming him unstable and unfit to govern and that it may be and was necessary to defy and ignore him.

But the temporary state in which the Constitution was essentially illegally but practically put aside for a few days in 1974—a bad, and scary, enough, state of affairs then—it is terrifying for the health of the nation, the power of the Constitution, the world standing of America, and the staying power of democracy worldwide that the Constitution of the world’s oldest continuous democracy has essentially been put aside for coming up on two years since the beginning of Trump’s presidency because not just so-called “deep state” career bureaucrats, but even the president’s own most senior appointed officials chosen by him and his inner circle (including the author of the Times op-ed) deem him to be a madman unfit and unable to govern, and that it is necessary for the good of the country that they work to usurp his authority, lest he abuse it in such a gross way as to do serious damage to the country. 

Whether ignoring more extreme orders or swiping papers off the president’s desk to prevent his official signature from enacting terrible policies, those around Trump are unconstitutionally governing with some of the president’s constitutional powers along with the president himself but without the president’s knowledge or permission.

In other words, this presidency is by definition both a constitutional crises and inherently extraconstitutional.

Which begs the questions: Who is in charge? Who is making the decisions, how often, and when?  Who answers to whom? How aware is the president of any of this? How well can the president perceive the situation and understand the reality of his own White House? To what degree are America’s allies aware of all this and how is this damaging America’s relationships with them? To what degree are America’s rivals and enemies aware of this and how is this emboldening them and weakening American national security? If a major crisis erupts, if the U.S. is under attack, how would the country be led?

The disturbing and unacceptable truth is that we do not know the answers to any of these questions. We are like a ship unmoored with crew running around furiously to keep the ship from colliding or sinking but with no one at the helm. We have been fortunate—extremely fortunate—that so far, no major crisis has emerged to challenge this far-from-ideal modus operandi.

Some will argue that the officials undermining Trump are way out of bounds. Others will argue that Trump is so terrible that these actions are necessary. The great philosophical question—which will be debated as long as debate exists—is, do you stay true to the Constitution even as superiors destroy it, or do you violate the Constitution to protect it?

There is no easy answer, hence, we are where we are. 

Especially considering that Trump has not, as is also the case with his tax returns, released a recent credible and full medical record, a reality that is necessary to confront is that Trump’s age and physical condition make him an ideal candidate for “executive dysfunction” under conditions discussed by Mark Fisher, David Franklin, and Jerrold Post in the same journal issue as Goldstein’s aforementioned article. “Based on the known neuroanatomic localization of executive function and its well described age-dependent changes,” they write, “a significant proportion of political leaders over the age of 65 are likely subject to executive dysfunction.” Trump is 72 and can barely string together a complete sentence or stay focused in a meeting. Many around him question his mental state, and any honest view of video of a far younger Trump compared with President Trump makes it clear to all but the most fanatical that there has been some sort of mental degeneration in the interim.

However you feel, what is not in dispute is that the Constitution is being ignored and that the longer this continues, the more the American system and American credibility is undermined and the greater the chance that the American ship of state will run into disaster, with no guarantee it will be restored to its former functionality.  If America’s current extraconstitutional republic is not restored to a constitutional one, history will look back on Americans harshly, and justly so.

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Ultimately, this is actually all part of a massive “active measures” political warfare campaign by Russia, designed from the beginning to weaken and undermine American institutions from the top down, beginning first and foremost with the U.S. presidency but trickling down to all walks of American political life. To be sure, what I have termed the (First) Russo-American Cyberwar—Russian President Vladimir Putin’s bold and unprecedented campaign to install Trump in the White House—succeeded wildly beyond what probably most Kremlin planners had dreamed of, and a president that literally broke the U.S. Constitution almost from the get-go for the duration of his first few years in office (and who knows how much longer) was probably not a specifically anticipated or designed outcome, especially within this timeframe. But it would have been within the realm of desired outcomes, as placing an agent of chaos—witting or unwitting—in the oval office can obviously produce a wide range of outcomes that generally destabilize and weaken the United States, which most certainly were the Russian aims in 2015-2016, and, as the just-released latest Justice Department criminal charges show, still are the goals as we head into the 2018 midterm elections, carried out by some the same overall agents as before. This campaign of Putin’s is still further part of his overall war against the West, NATO, and democracy, or the rise of what I call worldwide (small-d) democratic fascism. Taken together, this is a new form of (cold) warfare, using Twitter and racism instead of tanks and rockets, but it is warfare nonetheless. 

And it is warfare we are losing.

That a sitting U.S. president is essentially not necessarily in charge and is being constantly ignored and sidelined by patriotic underlings, that the U.S. Constitution has ceased to properly function as intended, that the Trump presidency is operating outside the bounds of the Constitution and the law, may all be an overperformance on the stage that Putin has set, but make no mistake about it, this is all part of the Kremlin’s overall designs to do short, medium, and long-term damage to American political institutions, rule of law, politics, standing, culture, and the norms that support them. The longer this all continues unchecked, the more success that will be enjoyed by Russia and the more damage to the health, even survivability, of the American political system and the U.S. Constitution. If the true functioning U.S. Constitution is not restored soon and Trump and his now cultish, sycophantic Republican party remain in power, perhaps Trump’s successor will operate within the Constitution, but perhaps not. Far better to check Trump and the GOP in these midterms, than leave it to chance, for the history of the Roman Republic shows that once precedents are broken and the longer they are broken, the greater the propensity that they will be broken again or swept away by new precedents, in Rome’s case, an autocratic emperor-based system operating under the guise of a democratic republic, and even that eventually gave way to out-and-out acknowledged autocracy. To maximize our odds of not repeating and falling down the same degenerative path, it is essential to restore the U.S. Constitution and the rule of law by first checking Trump and his Republican enablers during today’s midterms, and then Constitutionally removing him and them from power as soon as possible, whether at the ballot box or through other measures as allowed within our properly functioning constitutional system.

Brian E. Frydenborg is an American freelance writer and consultant from the New York City area who has been based in Amman, Jordan, since early 2014. He holds an M.S. in Peace Operations and specializes in a wide range of interrelated topics, including international and U.S. policy/politics, security/conflict/(counter)terrorism, humanitarianism, development, social justice, and history. You can follow and contact him on Twitter: @bfry1981

© 2018 Brian E. Frydenborg, all rights reserved, permission required for republication, attributed quotations welcome

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