Can a Constitution Based on Honor and Trust Still Work?

“It can’t happen here,” is a phrase I hear when the potential of an American autocracy is discussed. Unfortunately, it is happening here. What differentiates a number of modern autocracies is how their strongmen – men – came to power: they were elected. Not a military coup or civil war. In some cases, it is a legislative body, like China’s Politburo, that votes them into power. In others, it is the people, directly in a presidential contest or indirectly for a prime minister in a parliamentary vote. Even Hitler found his way to power over pre-WWII Germany through this process.

It’s what happens when that elected/selected leader is able to ignore the surrounding checks and balances, believes he is above the law (or is the law) almost always in collusion with a powerful political machine that supports him, and begins to erode bastions of democratic nations such as a free press, an independent judiciary and socially-directed groups dedicated to political causes that oppose the leader’s policies. Invariably, massive change of some sort precipitates the willingness of the electorate to tolerate autocracy… which is often viewed as the only, if not most efficient way, to eliminate the source of change in society.

In post WWI Germany, the reparations and restrictions imposed by the allies on the vanquished Germans generated staggering inflation, widespread poverty and food shortages and a feeling of general hopelessness. In Russia, the break-up of the Soviet Union, the decline of Russian power and the corrupt transfer of government assets to what became Russian oligarchs – the loss of global influence and power – all led to the notion of a Russian strongman who could cut through the morass and move Russia back to the power once held by the Soviet Union.

Out of control crime, drug addiction on a massive scale and government corruption drove Rodrigo Duterte to be elected President of the Philippines. Duterte’s solution: encouraging vigilantism to execute addicts and deals in the streets. Recep Erdogan seized on the schism between religiously conservative (Sunni Muslim) more rural areas and the liberal cities in Turkey to undo the post-WWI commitment to secularism.

“In the Philippines, prominent journalists have been arrested after publishing reports critical of [President Rodrigo] Duterte. He has also referred to reporters as spies and warned that they are not exempt from assassination in a country where extrajudicial killings encouraged by Duterte have reached more than 7,000.

“In Turkey, Erdogan has virtually eliminated independent news media . That country has jailed more journalists than any other in the world. Erdogan has also brought the judiciary firmly under his government’s control.

“In Hungary, [President Viktor] Orban has eviscerated the nation’s Constitutional Court, brought the rest of the judiciary under his party’s control, and put nearly all independent media outlets out of business. In Vladimir Putin’s Russia, journalists and opposition politicians have been jailed or assassinated and news media have been brought firmly within the Kremlin’s grip.” USC Professor Wayne Sandholtz writing an OpEd for the January 15^th Los Angeles Times. In the United States, it is massive income inequality, globalization, automation, the “minoritization” of America, the erosion of white traditional rural power and our economic stagnation (unless you are rich).

The US Constitution, formulated centuries ago, has not seen an amendment added since 1992, and even then, it was a vanilla ban on Congress giving itself a raise without an intervening election. Our Founding Fathers feared monarchies and seemingly built the country so that would never happen here. Unfortunately, they presumed that the American people would never elect a profane, self-serving bully, one who believed that he has absolute immunity from any criminal prosecution during his term, prone to fabrication and personal vitriol and one with business interests and lust for power that superseded his commitment to those who elected him. And guess who is an open admirer of autocrats?

So, they did not codify underlying codes of conduct for the President; they felt no need. They also didn’t envision a reason to articulate procedural standards for a Senate trial following an impeachment, wrongly believing that the Senators, bound by oath to render “impartial justice,” would do precisely that. Unfortunately, today we have a president who lacks the fundamental character that our Founding Fathers believed would always be there. And we have a majority party in the Senate making a mockery of a fair post-impeachment trial.

“Trump and his allies in Congress, and potentially the Supreme Court, are laying out a path that would make it possible for him to emulate the authoritarians… The impeachment process has shown that Republicans in Congress have no interest in being a check on this president, whether in substance or process.

“[GOP and Senate Majority Leader, Mitch] McConnell announced from the start that the Senate would not be impartial in any impeachment trial and that he would act in “total coordination” with Trump’s counsel. Lindsey Graham, chairman of the Senate Judiciary Committee, has declared that he has already made up his mind and has no intention of being ‘a fair juror.’… [In the second week of January], McConnell announced that the impeachment trial would begin without a decision on witnesses. These positions mock the oath to render ‘impartial justice’ that all senators will take at the impeachment trial.

“As for the Supreme Court, a moment of truth is approaching. The court has agreed to hear Trump’s appeal of the ruling of a three-judge panel of the 2nd Circuit Court of Appeals holding that he must comply with subpoenas for his personal and corporate tax records… During arguments at the appellate court, Trump’s lawyer, William Consovoy, argued that Trump enjoyed absolute immunity from criminal prosecution or investigation as president, even if he shot someone.

“With two Trump appointees — Neil M. Gorsuch and Brett M. Kavanaugh — now on the Supreme Court, it is possible that the court’s conservative majority will vote to shield a conservative president and accept his far-reaching claims of executive immunity. Such an outcome would further diminish the ability of the judicial branch to check executive powers and conduct… These developments and strategies mirror what authoritarian leaders abroad have used to enlarge and entrench their powers.” Sandholtz.

To most political scholars, Trump has no shot of being convicted and removed from office. If any witnesses are called, they will be few and their testimony limited. And if Trump actually loses the 2020 election, there is real doubt that he will voluntarily leave office on January 20, 2021, when his term expires. He may well exhort those NRA-members who believe in CEO Wayne LaPierre’s 2015 reminder that having automatic weapons is a Second Amendment right in case those gun owners face an America they do not like: "In a nation in which, almost everywhere you look, in profoundly troubling ways, freedom has been diminished. Our right to gather, our right to speak, our financial freedom, our right to care for our families as we see fit, our religious freedom, our right to privacy - all of it in decline." LaPierre’s followers know exactly what to do with those guns when the time is right.

              I’m Peter Dekom, and those holes in the US Constitution were never existential threats to our democracy… until now.