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During Donald Trump’s 2016 campaign for president of the United States, one of his popular slogans was “Drain the swamp,” which was a promise to rid Washington, DC of corruption. But with his recent commutation of the prison sentence of Roger Stone, a close ally, some scholars and legal experts warn that Trump is indeed breaking with tradition, but in the service of corrupt goals.
The level of corruption in Trump’s immediate circle is a matter of debate, with Republican allies claiming that Trump and his administration have been unfairly targeted by law enforcement. There is little debate, though, that Trump has broken many norms during his presidency.
While some precedent-flouting actions may be of little consequence, experts fear Trump’s presidency could be harming American democracy.
Trump pardons Roger Stone
On Friday, July 10, Trump commuted the 40-month sentence of Roger Stone, a longtime political ally who had served as an adviser for Trump’s campaign. Stone received his sentence after being convicted of seven criminal charges related to a Congressional investigation into Russian interference in the 2016 election. Stone’s charges included lying to Congress and witness tampering.
After Stone was convicted, a dispute over the length of his sentence culminated in the Department of Justice (DOJ) undercutting its own prosecutors’ sentencing recommendation. The four prosecutors who had tried Stone’s case resigned after the DOJ reduced the recommended sentence. At that time, Trump said he did not intend to pardon Stone, but, if true, it’s clear that he changed his mind.
In addition to obstructing a Congressional investigation, Stone has known ties to Julian Assange and WikiLeaks and was said to have had advanced knowledge of the Democratic National Committee (DNC) email leak during the last election.
It was the belief of Special Counsel Robert Mueller, who investigated whether Trump had illegally conspired with Russia, that Trump and Stone were in communication about the stolen emails, which were retrieved by Russian hackers. Mueller did not charge Trump with a crime but said his investigation did not exonerate the president.
Unfavorable comparisons to Nixon
Following Stone’s commutation, The New York Times declared that “In commuting Stone’s sentence, Trump goes where Nixon would not.” Trump’s pardon of a convicted criminal whose actions were perceived to protect the president was unprecedented, the Times argued, even for President Richard Nixon, who resigned after his campaign’s illegal actions became public.
In 1972, associates of Nixon were caught in the Watergate break-in that ultimately led to Nixon’s resignation. Though Nixon reportedly considered offering pardons to the men, he ultimately left office without pardoning any of his associates.
Trump, on the other hand, has issued 36 pardons or commutations as president, of which 31 have had a personal or political connection to him. So far, Stone is the person with the closest direct ties to Trump to receive a presidential pardon or commutation.
Other presidents have pardoned or commuted the sentences of people with connections to them, but only once or twice. While a president has the power to pardon or commute a federal sentence as they see fit, historically presidents have taken the guidance of the DOJ’s pardon attorney who receives pardon requests from the public.
Not only has Trump not sought the advice of the pardon attorney in 31 of 36 pardons or commutations, but in the case of Stone, he went against the advice of Attorney General William Barr.
There was vigorous hand wringing over Trump’s actions, with Republican Senator Mitt Romney summing up the anger in a Saturday tweet that read, “Unprecedented, historic corruption: an American president commutes the sentence of a person convicted by a jury of lying to shield that very president.”
Notably, Romney was the only member of his party to vote for the president’s removal in Trump’s impeachment trial.
Trump’s “unpresidented” presidency
Trump and his actions have been labeled “unprecedented” throughout his presidency. Of course, for something to be without precedent does not mean it is inherently corrupt or bad. Trump himself has regularly used the word to tout his accomplishments as president, as when he tweeted on September 7, 2018, “Unprecedented Jobs Growth Streak Continues as Wages Rise.”
Trump has also used the word to decry his opposition, as in his infamous December 17, 2016 tweet in which he called China’s stealing of a US Navy research drone an “unpresidented act.” He later deleted the tweet and rewrote it with “unprecedented” spelled correctly.
While that misspelling prompted humorous replies and days of jokes, historians, legal experts and political insiders have seen nothing funny in many of Trump’s other actions as president.
Presidential actions without precedent
In April 2019, The New Yorker warned of Trump’s “unprecedented assault on the power of Congress,” stating that by not cooperating with Congressional investigations, “President Donald Trump and his allies are invoking an unprecedented form of executive privilege that would systematically undermine Congress’s power and the post-Watergate norms established by Ford.”
Four presidential historians writing for CNN stated that they’ve never seen anything like Trump’s phone conversations with foreign leaders. They say those calls, such as the one with Ukrainian President Volodymyr Zelenskiy that led to Trump’s impeachment, “reveal a striking pattern of a president who consistently uses the Oval Office to advance his explicit self-interest seemingly without regard to national interest.”
Trump has also been accused of having “unprecedented conflicts of interest” by Citizens for Responsibility and Ethics in Washington (CREW), a nonpartisan accountability watchdog organization. According to CREW, there have been 3,238 conflicts, including 1,901 visits to Trump properties by government officials and 644 miscellaneous interactions with the Trump Organization.
Historically, presidents have sought to avoid any appearance of a business-related conflict of interest. One oft-repeated example is former President Jimmy Carter selling his peanut farm before taking on the presidency in 1976. In fact, Carter put the farm in a blind trust while he was president and sold it after he left office and after the farm had accrued more than US$1 million in debt.
Trump follows some precedents
For all the talk of his unprecedented actions and his claims of being a Washington outsider who will change the system, Trump hasn’t entirely bucked convention as president. In fact, where it has expedited his agenda, he has been more than willing to follow in the footsteps of his predecessors.
During his presidency, Barack Obama was regularly assailed for his use of executive orders to bypass Congress in order to further his political agenda, with Republican critics calling him a dictator and a “monarch.”
Obama signed 276 EOs in his eight years as president, roughly in line with the 291 his predecessor, Republican President George W. Bush, signed in his eight years. After three and a half years, Trump has signed 170 EOs, putting him on target to sign more than 350 EOs if he were to win a second term.
So while some have noted that Trump’s rhetoric of acting unilaterally, both domestically and abroad, is itself unprecedented, his willingness to expand presidential powers is in line with that of his predecessors.
The vital role of norms in a democracy
Presidential norms of behavior have been broken in the past, perhaps most significantly by President Franklin D. Roosevelt. Until FDR, all two-term presidents followed first US President George Washington’s precedent of stepping down after their second term. But, amid World War II, FDR broke with precedent and ran for a third term and then a fourth.
A few years after FDR died, just months into his fourth term, Congress passed a constitutional amendment mandating a two-term limit on presidents.
This was a rare instance of a presidential norm being enshrined into law. Two Harvard professors, Steven Levitsky and Daniel Ziblatt, argue in their 2018 book “How Democracies Die” that until recently, there was little need to make the unwritten norms of American politics official.
In their book, Levitsky and Ziblatt warn of how dangerous norm breaking can be. While ignoring precedent is lawful, the authors warn, “All successful democracies rely on informal rules that, though not found in the constitution or any laws, are widely known and respected. In the case of American democracy, this has been vital.”
Levitsky and Ziblatt call these unwritten rules “the soft guardrails of democracy preventing day-to-day political competition from devolving into a no-holds-barred conflict.”
And while there are countless such “rules” in American politics, the authors state, “Two norms stand out as fundamental to a functioning democracy: mutual toleration and institutional forbearance.” The former refers to the acceptance of one’s political opponents as legitimate rivals. The latter refers to “avoiding actions that, while respecting the letter of the law, obviously violate its spirit.”
Central to the thesis of “How Democracies Die” is that, while both Republicans and Democrats have broken these norms in the last four decades, Trump’s presidency has accelerated this process.
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