Professor Neil Siegel delivered a lecture at the Victoria University Law School in Wellington last night, discussing President Donald Trump’s treatment of constitutional norms and conventions.
Professor Siegel, who holds the Ian Borrin Visiting Fellowship, has travelled from Durham, North Carolina to Wellington.
In his native country Professor Siegel is the David W. Ichel Professor of Law and Professor of Political Science at Duke Law School.
Ahead of the lecture he talked to the New Zealand Law Society.
Long-standing principals thrown out the window
Professor Siegel says the most troubling aspect of Donald Trump’s conduct during and since the 2016 presidential campaign, is not any potential violations of the US Constitution or federal law, but his disregard of norms that had previously constrained presidential candidates and his flouting of constitutional conventions that had previously guided occupants of the White House.
Donald Trump entered the White House with zero political experience; however, that isn’t a plausible excuse for his behaviour, he says.
Professor Siegel says America is saturated with news coverage of Mr Trump.
“The questions (in the media) often tend to focus on whether he has violated the Constitution or a federal statute. I’m suggesting he very well may have and he very well might, but by far the most important consideration in evaluating his conduct is whether he has respected long-standing norms and long-standing principles that are supposed to guide and restrain candidates for President and then, once they’re in office, Presidents themselves,” he says.
He says constitutional conventions are special kinds of norms and principles that are supposed to guide and restrain the exercise of political power.
“So, when I look at his conduct as a candidate and then as a President, that’s what I’m most concerned about, not whether he has the legal authority to do and say certain things that he has done and said. He has contravened long-standing governmental practises that have been engaged in at least in part for normative reasons, out of a sense of obligation that there are certain things that you just don’t do or say regardless of which political party that you are in,” he says.
Disregarding the norms
Professor Siegel says there are many examples of where President Trump has disregarded ‘constitutional norms’.
He says during the presidential campaign, Mr Trump indulged in racism, misogyny, Islamaphobia and disparaging of the disabled in ways that are just extraordinary in contemporary American politics.
“This is not simply about legal analysis when you’re talking about constitutional norms. It’s about politics being conceived of in a more principled fashion, as opposed to as an opportunity to indulge your appetites or exercise your will. This is not a professional legal opinion only. It’s about norms that I think are not necessarily in the Constitution but are inextricably tied to it because they help to undergird the constitutional system.”
No tax return record release
Professor Siegel says President Trump’s continued refusal to release his tax returns is a major call for concern.
“It was a norm to do this going back to Watergate. For over 40 years Presidents of both parties did this even when it was against their own interests, like Mitt Romney in 2012.
“Might financial connections to Russia explain his seemingly inexplicable affinity for President Vladimir Putin? Is he as successful a businessperson as he says he is? Has he paid his taxes? Has he made charitable donations like he said he has? What is the relationship between his proposals to cut taxes for the wealthy and his own personal financial interests? These questions all linger,” he says.
Professor Siegel says Donald Trump has attacked both judicial and media independence.
“I have a laundry list of examples that I’ll go through during the lecture. I think the single most disturbing example is his practice of spreading falsehoods incessantly. He’s unlike anyone I’ve ever seen in American politics. He says things that are untrue and that are immediately demonstrable as untrue. All politicians stretch the truth on occasion but at least it’s the truth they’re stretching,” he says.
Trump’s ‘political fantasy’
He says that with President Trump’s public utterances, it is often more like political fantasy, yet a disturbing percentage of his political base accepts it as truth.
“For example, he has said repeatedly, in the absence of any evidence, that he actually would have won the popular vote if more than three million people hadn’t voted ‘illegally’ for Hillary Clinton. He has said over and over that President Obama wiretapped him during the campaign. These would be serious scandals if true but there is no evidence at all, and yet he (Trump) views his falsehoods as ‘opinions’ that he is entitled to possess and that are worth defending and even worth getting defensive about when other people simply point out that he has not produced any evidence, nor has anyone else,” Professor Siegel says.
He says President Trump has also refused to divest from his business interests, unlike any other President for at least decades before him.
Zero use of Camp David
“He routinely shows up at those properties such as Mar-a-Lago in Florida and more recently at his New Jersey compound. It’s all at public expense. The public is paying large sums for him to be flown there,” he says.
Sitting Presidents normally conduct business outside the White House at the presidential getaway, Camp David, in Maryland, which is about 100km from Washington D.C.
“What President Trump is doing is not something that Presidents of either party would have engaged in, in the past, nor is it something that any of the other Republican candidates for President would have done had they won. It’s something that Vice President Mike Pence won’t do,” he says.
Support base backing the President
Professor Siegel questions whether he is indeed getting away with it.
“We will know in 2018 during the mid-term elections and we’ll know a lot more after 2020. His base doesn’t seem to mind at all; in fact, they view it as just part of ‘shaking things up’ even as President Trump has populated the White House with family members and his cabinet with an unprecedented number of billionaires, unlike any other President. We’re going to see how much he gets away with. So far he has had very few legislative successes. His popularity upon taking office was the lowest of any President in decades and typically the honeymoon is at the beginning,” he says.
Professor Siegel says President Trump is getting away with it in the sense that he hasn’t been impeached, convicted and removed from office, but impeachment is unlikely for the time being when congressional Republicans want to get certain laws passed.
The President recently bypassed the White House correspondents’ dinner in favour of conducting a campaign rally in Pennsylvania, another breach of tradition.
The requirement for impeachment
Richard Nixon resigned before being impeached. Bill Clinton was impeached but not convicted as it requires a two thirds vote in the senate, so the threshold is high in order to remove a President.
The constitutional standard for impeachment is conviction of Treason, Bribery or other high Crimes and Misdemeanors.
“There’s a lot of uncertainty and debate about exactly what that means. It’s clear that it is broader than criminally unlawful conduct. The Constitution makes it a political crime: the House impeaches and the Senate tries. So it’s the political branches, the Congress that both brings the charges as prosecutor and adjudicates as judge and jury. It’s beyond simply the kind of illegality or criminality that courts would typically handle,” he says.
He says it has to be much more than mere policy disagreement because it takes two thirds of each house of Congress to override a presidential veto and yet it takes only a majority in the House to impeach a sitting president.
“Is he likely to be impeached now? No. If the House turns over and the Democrats win the mid-terms in 2018, it becomes more likely. If President Trump’s popularity sinks lower and the Republicans realise they’re better off without him going into 2020, then it becomes more possible,” he says.
Professor Siegel says he is less concerned about the Republicans doing it (impeachment) than the Democrats because part of what he wants to see is ways in which the United States can act more like New Zealand by taking norms and conventions more seriously and putting aside partisan politics.
“I’m more concerned about Democrats impeaching him, but at the same time the conduct we are talking about is extraordinary by historical standards and what I would focus on most is his pushing of the normative limits. Putting aside conflict of interest laws or the Emoluments Clause of the Constitution, he has breached norms in a way no one else in American politics has in recent memory. It’s the blurring of the lines between public service and private corruption, and also the incessant lying,” he says.
In further developments, on Wednesday, President Donald Trump fired the FBI director, James Comey, who was leading an investigation into whether Russia meddled with the 2016 Presidential election on behalf of Mr Trump and as to whether Mr Trump’s campaign colluded in that effort.