Omnia Podcast: Constitutional Crisis? (Audio)

On May 9, 2017, President Trump fired then-FBI director James Comey. This decision has intensified the debate of whether the U.S. is in a “constitutional crisis,” given the numerous controversies swirling around the Trump administration.

Rogers Smith, the Christopher H. Browne Distinguished Professor of Political Science, Associate Dean for Social Sciences in Penn Arts and Sciences, and a presidential historian and constitutional scholar, offers his take on why the firing of James Comey, as well as Trump's use of executive action and social media, is challenging the balance of power in Washington.

A transcript of the complete interview can be found below:

The term “constitutional crisis” has been used a lot recently in response to controversies swirling around the Trump administration. Rogers Smith, the Christopher H. Browne Distinguished Professor of Political Science, Associate Dean for Social Sciences in Penn Arts and Sciences, and a presidential historian and constitutional scholar, offers his take on why the firing of James Comey, as well as Trump's use of executive action and social media, is challenging the balance of power in Washington.

The nation is not in a constitutional crisis at the moment, but there is a potential for constitutional crisis. It has been a problem for a number of years that the polarization of American politics has led to gridlock at the national level and that has forced presidents, even those who didn't want to rely heavily on executive orders as Barack Obama didn't at first. But then the fact that after the Republicans took over Congress he couldn't get anything through meant that he relied on executive orders more and more and did push the constitutional boundaries of executive power if he didn't, indeed, violate them.

We thought that that might change under Trump because Republicans are now in control of both houses of Congress, the Supreme Court, most of the state legislatures, it seemed like we wouldn't have that gridlock. We might have other problems but it wouldn't be a problem of gridlock, but two things have occurred. One is that we do have a president who is used to being a CEO and who is used to doing things by unilateral executive action and who wants to show that he alone is fixing all the problems, so he's very attracted to using executive orders to get things done. Inexperienced in working with Congress, and it also turns out that the Republicans are in control of Congress but they're not in control of themselves. They're deeply divided on what to do on a lot of issues, at least sufficiently, so that the Democratic presence in the House and particularly the Senate can prevent measures from going forward. That reproduces the scenario of gridlock in which a president feels inclined to take unilateral action. Therefore, we are seeing continuing and heightening problems of an executive overstepping the bounds of the separation of powers or at least persistently pushing against them.

President Trump's unconventional use of social media has distinguished him from other presidents. Smith discusses how this direct communication with his constituency affects his ability to govern.

There is a striking pattern in American politics into which Trump fits in significant measure. That is that new technologies have made it possible for presidents to establish a kind of direct relationship with the people that they didn't have at the beginning of the republic. At the beginning of the United States, it was considered poor form for presidents actually to go out and campaign and give anything more than ceremonial speeches. They communicated to Congress, they did not speak directly to the people. It was Woodrow Wilson that did the most to establish the pattern that the president would speak directly to the people, and he did use it to claim broad powers, especially in foreign policy but also in domestic security investigations that in some cases did go beyond the constitutional boundaries.

Then FDR took advantage of a new technology, radio, to do the fireside chats that again established a stronger direct relationship with the American people than most of his predecessors had. That built up such support that he did feel after his success in the 1936 election that he could try to subordinate the judiciary to the executive branch through the court-packing plan. That plan failed, although he did eventually get a pro-New Deal court.

Trump fits that pattern because through tweets and in a way that again has been far more successful and impactful than most of us political scientists expected, he has established a direct relationship with his constituencies where he can effectively discredit the rival accounts in the mainstream media, what he calls fake news. And he keeps them fired up in support and that gives him confidence that he has political clout that can enable him to get away with possible violations of the separation of powers. I think that the constituency he mobilizes with the tweets is not ultimately going to be strong enough to allow him to do so but in so far as a new medium of communication has created a new connection between the president and popular constituencies and this has encouraged the president to push the boundaries of the separation of powers—that is a pattern that we've seen before, maybe never quite so dramatically as right now.

On Tuesday, May 9, President Trump fired then-FBI director James Comey. In anticipation of damaging leaks, which have dogged his administration, President Trump suggested in a tweet that he had recordings of past conversations with Comey, a statement which many viewed as a threat. Smith discusses the firing, as well as the importance of recorded presidential correspondences.

Lyndon Johnson introduced the taping system into the White House and a lot of people didn't know they were being taped in the Oval Office. Nixon continued it, and then the notoriety of the Nixon tapes in the Watergate investigation has meant that subsequent presidents certainly haven't acknowledged that they were taping people without those people being aware that the conversations were recorded.

In this case, as with many of Trump's tweets, it's very difficult to interpret with confidence what he was doing. He clearly wanted to try to get Comey, whom he criticized as a ”showboat” and ”grandstander”— unlike the modest demeanor that the executive branch tries to set as its dominant tone—off the stage, that's clear, and so the most obvious part of the message is he's telling Comey, "Don't leak anything confidential."

I doubt that the tweet alone would be a basis for intimidation that could get Trump into legal trouble, but again he has a whole series of these statements that at least appear to suggest illegal actions or improper motivations. And though he hasn't done anything yet that I think is likely to get him indicted or convicted in any court, the repeated instances of this kind of behavior raises the uncertainty of about whether soon or later he is going to cross the line and then we'll have a constitutional crisis.

Two days after we initially spoke with Smith, it was reported that Comey kept detailed notes on his meetings with the president. In one such memo, it is alleged that the president tried to intervene in an active investigation. We asked Smith about the significance of this new information.

This issue has certainly escalated the controversy. If it looks like the President was bringing pressure to end the investigation, then the concerns about obstruction of justice are heightened. The concerns might not lead to criminal charges, but they might lead to a broader political sentiment that he is acting improperly in office, is unfit for office.

Two things are striking in the wake of this. The first is that it does appear that a number of administration officials in the FBI, in the [Central] Intelligence Agency and, apparently, in the White House itself, or at least close to the White House, they are leaking information to indicate that the President has acted improperly, apparently out of a deep sense that he is not conducting his office properly. As a result of this barrage of stories there is mounting concern, even amongst Republicans in Congress, with both the Senate and House Intelligence Committees saying that they want complete records of these discussions between the President and Comey from the FBI, indicating they're willing to use subpoena powers to get this information. And one Republican congressman who, admittedly, is not a fan of President Trump, has said that if there is evidence of an effort to obstruct justice, pressure the investigation, it will be grounds for impeachment. So, the President is in a lot more hot water than he was a couple of days ago, and the separation of powers situation is approaching a much sharper constitutional conflict.

Do you believe if this continues to escalate that the Republicans, at some point, will begin to distance themselves?

Yes. Some are already doing so, and at this point Trump has, for more conventional establishment-type Republicans, pretty much given them all they want from him. He won the White House for them. He appointed Neil Gorsuch to the Supreme Court. If he proves to be a political liability, they could try to push him out and replace him with Vice President Mike Pence, whom they are more comfortable with to begin with. So, he's definitely in a vulnerable position if any of these charges prove to have any staying power.

• • • 

Subscribe to the OMNIA Podcast on Apple iTunes here. 

Listen to previous episodes on Soundcloud.