The big stories right now, in terms of popular and press reaction appear to be the attack on Venezuela, seizure of its president, and the killing of Renee Good by an ICE agent in Minneapolis. The consequences of President Trump’s behavior in Latin America are huge. And there is, as there should be, a great deal of public attention to the behavior of the ICE agent in the killing of Renee Good. But, as I have described before, both events fit President Trump’s political strategy and looking tough has often proven a successful political strategy for him.
The consequential issue underlying both events therefore is how long Mr. Trump will retain the power to control the various agencies of American government. The 22nd Amendment, which limits anyone from more than two terms as president, should limit how long Trump can remain in office, And rules controlling elections should control the fairness of the election in 2028. But whether any of that will matter is unclear because the “right wing,” which I prefer to call the “wrong wing,” is trying to rig the election results by changing rules to take the election out of the people’s hands by preventing some of them from voting.
The only significant legal question is the behavior of the US Supreme Court. When Justice Anthony Kennedy agreed to deny relief in the last gerrymandering decision in which he participated, I gave up on the Court. If it changes its mind, it will be because some justices become sufficiently disturbed by Mr. Trump, not because of any legal arguments. The election will not be affected by the impeachment clause even though Trump repeatedly violated the emoluments clause. That clause was intended to prevent presidents from taking advantage of the financial implications of foreign relations. But Congress won’t care until and unless the Republican primary electorate cares.
In other words, too few Americans see the importance of law. Yet law will have a lot to do with who will be president after the next election. That’s partly because the Supreme Court can decide whether the term limits clause prevents Mr. Trump from running or serving again. And even if the Court were to allow Trump to run again, the Court decision in Shelby County v. Holder eliminated the main statutory restriction against making election rules more discriminatory. And those reconstituted legislatures will determine the rules governing presidential elections.
The larger question behind all these decisions is the impact on Trump. Will the drip, drip, drip of all his violations of law and decency finally persuade the American people, in sufficient numbers, to drive him out of office. What would be sufficient is not just a matter of counting votes; for one historical example, Hitler never had support from anything close to a majority of the German people. And, because the Supreme Court gave Trump immunity in Trump v. United States, he may not fear any responsibility even after leaving office for his most irresponsible behavior, including contributing to the possibility of overturning American democratic government. Therefore, unless he can be brought under control while he is in office, it is unclear whether there will be any route to righting the ship of state after he leaves.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran. He enjoys the help of his editor, Jeanette Gottlieb
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