Even those who experience the Donald Trump presidency as an uninterrupted emergency have had moments when concern about what happens next has spiked.
We appear to be in such a moment. Internet search interest in the phrase “constitutional crisis” went ballistic in the first week of February, according to Google, and the phrase featured prominently in talking points deployed by top Democrats over the weekend.
The cause for alarm was the release of the so-called Nunes memo, named for Devin Nunes, the Republican chairman of the House intelligence committee. It was a slender work which sought to tar the top figures in the Russia investigation as compromised by a partisan conspiracy.
Trump himself reportedly believed that the Nunes memo was a set-up for him to sideline one or more of those top figures, possibly special counsel Robert Muelleror his boss, deputy attorney general Rod Rosenstein. Both men are Republicans, a fact which has done nothing to quell the theories that they brought an inherent bias against Trump.
Democrats have warned that the president would be placing himself beyond the reach of the law if he tried to remove the men, because such a move would hamper an investigation in which Trump personally appears to be a target. The president would be acting more like a king than a constitutional executive.
“If the president uses this fake, horrible release of distorted intelligence as an excuse to fire Rosenstein or Mueller, it could lead to a constitutional crisis,” the Senate minority whip, Dick Durbin, said, echoing a line used by House minority leader, Nancy Pelosi.
But were the Democrats right to deliver the warning? Is a constitutional crisis afoot? The short answer, according to multiple experts in constitutional law, is no – not yet.
“I don’t think that we’re currently in a constitutional crisis, although we’re certainly dealing with activities that are unusual in our constitutional experience, and that can sometimes lead people to worry that you’re in the midst of crisis,” said Keith Whittington, a professor of politics at Princeton University specializing in constitutional theory. “But things being unfamiliar isn’t necessarily the same as things being broken down and in a crisis.”
Eric Posner, a professor at the University of Chicago law school who has revisitedthe question frequently over the past year, agreed that the country isn’t there yet.
“What’s really going on is that people are worried that a constitutional crisis might begin at any moment,” Posner said. “And I can understand the worries. President Trump is unpredictable. He’s said an awful lot of alarming things, which if followed through on would be unconstitutional – but he hasn’t really followed through yet.”
Trump’s failure to divest from his companies as president and his attempts to impose what critics say are discriminatory travel bans are evidence that the Trump presidency threatens constitutional norms.
However, it takes more than a wayward president to precipitate a constitutional crisis, which involves an unresolved clash between branches of government or the unanswered flouting of constitutional rules, legal experts advise.
The Trump administration has so far abided by judicial rulings in the case of the travel bans, diverting a potential crisis, experts said. Likewise, Trump might comply with a ruling in the case of any firing of justice department officials, Posner said.
“I think probably the thing to look for is a judicial order that the president defies,” he said. “That’s the clearest evidence that a constitutional crisis exists.
“So for example, if Trump fired Mueller and a court reinstated him, and Trump ordered the treasury department not to pay his salary, or the justice department not to give him a budget, or something like that, that would be a clear constitutional crisis.”
In the case of a Mueller or Rosenstein firing, other potential checks including congressional oversight and the electoral process would have to fail before the risk of a constitutional crisis became full-blown, said Whittington.
But the position would become more grave if Trump did fire Rosenstein or Mueller, and then the Republican majority in Congress did nothing to rebuke him, and voters in the 2018 midterm elections returned that majority to Capitol Hill.
“Then I think we’re probably in a pretty disturbing situation, because then it would suggest that the president’s own party in Congress has come to the conclusion that it’s politically and electorally safe for them to allow the president to behave very badly,” Whittington said.
Many people felt in 1973 that Richard Nixon’s firing of special prosecutor Archibald Cox in the Watergate affair amounted to a constitutional crisis, said Posner, but no such crisis materialized because Nixon ultimately complied with justice department subpoenas, the government continued to function, and then Nixon resigned.
“In a lot of ways, the system operated exactly as it should have” during Watergate, Posner said.
Whittington agreed. “I don’t think this is that dangerous of a moment,” he said of the Trump era. “Certainly there are reasons to worry, in part because president Trump himself is a very unusual individual to hold executive office, and the political parties are extremely polarized.
“The US has confronted lots of serious and difficult social, economic and political dilemmas across its history and sometimes people worry whether the constitution was adequate to allow the government to address those problems in a reasonable way, but I just don’t think that the problems that currently confront us are nearly as severe as some of those that we’ve seen in the past.”
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