Four years ago this Monday, Donald Trump pressured Mike Pence to pursue a surreal interpretation of the vice president’s constitutional role in counting the Electoral College’s votes. Mr. Pence refused, igniting Mr. Trump’s fury for not subordinating either philosophical or constitutional principles in service to him, thereby showing “disloyalty.” Thus ended Mr. Pence’s usefulness to Trumpworld, albeit honorably for Mr. Pence.
Now Mr. Trump is selecting key personnel for his second term. Although the prospective appointees vary in philosophy, competence and character, one requirement for them is unfortunately consistent: the likelihood that they will carry out Mr. Trump’s orders blind to norms and standards underlying effective governance, or perhaps even to legality.
Mr. Trump’s obsessiveness stems purportedly from an unhappy first term, when too many senior advisers were not “loyal” to him. These officials had separate agendas, Mr. Trump’s advocates say, undermining, frustrating, even reversing the president’s decisions and thereby illegitimately usurping his power. Such usurpers were considered denizens of the “deep state,” Republicans in Name Only, conspiratorially linked by a desire to cripple Mr. Trump’s presidency. Not this time, say his consiglieri, notably his eldest son; they want only loyalists.
But what exactly is “loyalty” in the executive branch, and indeed in Congress, where senators have a constitutional advise-and-consent role regarding significant numbers of (but not all) senior officials? To most citizens, loyalty is rightly seen as a virtue. Indeed, a major tenet of first-term veterans of Mr. Trump’s administration is that they did what was customary, which was to swear loyalty to our Constitution, not the man. Former officials like Mark Esper and Mark Milley have persuasively made precisely this point, which the Trump transition team conveniently ignores, fearing correctly that asserting personal over constitutional loyalty would produce nuclear-level blowback.
In fact, Mr. Trump, whose understanding of the Constitution is sketchy, really wants his appointees to display fealty, a medieval concept implying not mere loyalty but submission. Berating and demeaning cabinet officials before their colleagues, as he did to Attorney General Jeff Sessions and Homeland Security Secretary Kirstjen Nielsen, among others, and then keeping them in office is disturbing yet typical for Mr. Trump. At Britain’s 2023 coronation of King Charles, Prince William pledged that he would be his father’s “liege man of life and limb.” That’s fealty, publicly affirmed, the kind of personalist link that Mr. Trump expects will elide constitutional obligations.
This is indisputably damaging to a free society, but it is a well-established Trump habit. Neither kings nor presidents, nor their countries, are well served if they are surrounded by sycophants and opportunists. Truly strong presidents are not afraid of advisers with strong views.
At his first formal cabinet meeting in June 2017, with the media present, Mr. Trump solicited his team’s praise, something even old Washington hands could not recall having seen.
In the current transition, potential Trump appointees say they have been asked whether they believe the 2020 election was stolen (to which there is only one right answer, one contrary to fact) and how they view the events of Jan. 6, 2021. (When Mr. Trump finally leaves the political scene, it will be interesting to see how many nominees claim they never believed he won in 2020 or that Jan. 6 was an innocent walk in the park, not an unlawful riot.) Kissing Mr. Trump’s ring to gain the highest government ranks is one thing, but the real crunch for the new appointees, especially those without prior government experience, will come after they actually begin work. That is one reason the Constitution checks the president’s appointment power.
The framers strove to make their Constitution lasting. They were not naïve. They had lived through “times that try men’s souls.” Alexander Hamilton, for example, saw the Senate’s advice-and-consent role in the most practical terms. As he wrote in Federalist 76, the idea that the president “could in general purchase the integrity of the whole body would be forced and improbable. A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members; but that the necessity of its cooperation in the business of appointments will be a considerable and salutary restraint upon the conduct of that magistrate.”
Asking the Senate to perform as Hamilton envisioned is not hard. Recently, 38 House Republicans dealt Mr. Trump his first legislative loss as president-elect by defeating a continuing resolution he backed. Surely senators are at least as independent as House members.
How does fealty work in office? This is the real test of appointees’ personal integrity, evidencing whether their loyalty is to the Constitution or to Mr. Trump. In the Defense Department, for example, where military officers are obligated not to follow illegal orders, what happens if Mr. Trump orders a domestic deployment that violates the Posse Comitatus Act? Will Pete Hegseth, whom Mr. Trump has chosen to be the secretary of defense, urge rescinding the order or just pass it along to the armed services? Will uniformed officers, perhaps advised by government lawyers, demur? How deep into the chain of command could this chaos extend, and what lasting damage might it cause?
Analogous illegal orders could cause significant crises across the intelligence community, which is considered the dark heart of the deep state by many, Mr. Trump among them. But the federal departments and agencies most at risk are law-enforcement agencies, especially the Justice Department. If Mr. Trump orders that his choice for attorney general, Pam Bondi, prosecute Liz Cheney for potential subornation of perjury before the House’s Jan. 6 committee, what will Ms. Bondi do? She could say there is no prohibition on members of Congress encouraging witnesses to tell the truth in legislative hearings and no evidence that Cassidy Hutchinson or other witnesses perjured themselves.
Or Ms. Bondi could instruct Mr. Trump’s pick for deputy attorney general, Todd Blanche, who represented the president-elect in several criminal cases, to investigate not only Ms. Cheney but also Ms. Hutchinson and other witnesses. Mr. Blanche will be an interesting test case. He is a former federal prosecutor. He knows the rules. Will he uncritically follow Ms. Bondi’s order, at the risk of his own legal ethics and possible disciplinary action from the bar association? If Mr. Blanche passes the order down to the assistant attorney general for the criminal or national security division, or directly to the U.S. attorney for the District of Columbia, what then? And once presented to career trial attorneys, what will they do, with their own professionalism at stake? All these questions and decisions also apply to F.B.I. staff members and other investigators, who will face scenarios comparable to those at the Justice Department.
As a result, there could be a Justice Department in continuing crisis. Whatever happens there and at other agencies, however, I believe the federal judiciary, including the Supreme Court under Chief Justice John Roberts, and especially the trial courts, will not long tolerate the sort of malicious prosecutions Mr. Trump is considering in his retribution campaign. The example of district court judges in the District of Columbia, whether appointed by Republican or Democratic presidents, handling Jan. 6 defendants is instructive, especially their sentencing decisions. They may not all have been like Watergate’s “Maximum John” Sirica, an appointee of President Dwight Eisenhower, but they were tough. There’s nothing like the judiciary’s life tenure, compared with serving “at the pleasure of the president for the time being.”
Of course, just the cost of legal representation during investigations or prosecutions can be daunting, especially since Mr. Trump will be using tax dollars if he decides to wage lawfare against political opponents. He may not be expending his personal resources, but his targets will. Nor will they have the extent of official immunity that presidents have, criminally or civilly, something for office seekers to think about in advance.
Mr. Trump’s appointees should carefully note his expertise in escaping the consequences of his actions, whereas his loyal supporters often do not. Ask Michael Cohen and Rudy Giuliani.
The post John Bolton: Presidents Expect Loyalty. Trump Demands Fealty. appeared first on New York Times.
