An Initial Assessment of the Health of Our Democratic Institutions in the Trump Era

This article is a condensed version of the author’s Charles Evans Hughes Lecture, delivered for the New York County Lawyers Association on Feb. 9, 2021. The full text of the lecture can be found on the NYCLA website. The Fordham Law School website also contains the full text and the audio recording of the lecture.

Charles Evans Hughes is a towering figure in American Law. Born in Glens Falls, N.Y. in 1862 to a Welsh immigrant preacher, he started his legal career at Chamberlain, Carter & Hornblower, becoming a named partner four years later in 1884. The firm, now known as Hughes, Hubbard and Reed, remains one of our nation’s leading law firms and has sponsored NYCLA’s Hughes lecture since its inception in 1948.

Hughes’ career in both private practice and public service was built on a reputation for independence and integrity. He was elected Governor of New York in 1906 and then appointed to the Supreme Court. After serving as an associate justice for six years, he resigned to run for President. While he never made it to the White House, he did become the eighth president of NYCLA—a post he left when returned to public service as Secretary of State. After another stint in private practice, he returned to government, first as Solicitor General, and then from 1930 to 1941 as Chief Justice of the United States.

From start to finish, Hughes’ career was based on a few bedrock values—as the child of a pastor, service was an imperative to him. This commitment was married to a firm foundation in integrity and fair dealing. He was outspoken in decrying racial injustice—he was the keynote speaker at the National Conference Against Lynching in 1919 and as Chief Justice, he ended segregation in the Supreme Court cafeteria. He personified the great citizen-lawyer who spent his life working to build and sustain our profession, our legal institutions and our American democracy.

This is an important moment to think about Hughes and the values that he stood for and fought for. It is important because these values are being challenged on a daily basis and much of what we have assumed to be foundational principles of American democracy are now at risk. Hughes’ values appear today not as stodgy appeals to rectitude, but as a call to action. What would he say, looking at the present state of the nation?

We are at an inflection point—a new administration has just taken office, drawing to a close the four years of a presidential administration unlike any before. It is far too early to draw definitive conclusions about the Trump experience—historians will do so for years to come—and let’s face it, we all have a lot to process. But I want to offer a number of observations about what we have learned about American democracy at this point in our history. I will focus on the daily erosion of our norms and institutions over the past four years that paved the way for the insurrection.

American democracy is a bundle of laws, cultural norms, values, tradition and history all operating under a framework established by the Constitution. It is a rich mixture of “hard law” and “soft law.” What have we learned over the past four years about this mixture? How effective is it at defining the role and place of the presidency in our system of government? We learned a lot. Donald Trump is our first President who from start to finish of his presidency broadcast contempt for the norms and traditions of the office.

I will touch on a few aspects that made clear that a President who wished to do so, could abuse power with impunity. These may not be the things that strike many people as the most egregious aspects of the Trump era, but they are important in their corrosive effect on the laws, norms and values that define the office of the president. I will focus on four features intended to prevent a powerful president from subverting our processes and institutions: First, the separation of prosecution from politics; second, the web of laws and traditions intended to prevent corruption; third, the requirement of senate confirmation for officers of the United States; fourth, and finally, the performance of the judiciary in constraining a lawless administration.

First, the separation of politics from prosecution is a core principle in our democracy—political leaders abuse their power when they manipulate the authority to excuse or accuse individuals of crimes to further their own personal ends. This kind abuse would be included in any primer on despotism—it is Tyranny 101.

Our means of ensuring the separation of politics from criminal prosecution is largely based on culture and tradition—constraints that proved inadequate. President Trump was able to protect allies and supporters from the full weight of prosecution. President Trump also worked hard to harness the power of political prosecution to punish and neutralize his adversaries. Here, the President’s efforts were less successful, and our system proved resilient. The threat to prosecute political enemies, however, is a powerful weapon in itself, even if indictments never issue. President Trump could meddle with the machinery of criminal prosecution because we have no firm constraints in place that prevent a president from doing so.

Second, many of the laws intended to ensure ethical conduct by public officials were exposed to be ineffective in constraining a president who did not share the norms and values that the laws reflect—including rules intended to protect the use of public office for private financial or political ends and the system of watchdogs established by placement of inspectors general distributed throughout federal agencies.

For example, senior officials in the Trump administration disregarded both the letter and spirit of the Hatch Act with impunity. With the exception of the President and Vice President, the Hatch Act prohibits federal employees from using their positions for partisan political purposes. Clearly, there are gray areas, as many steps taken by officials have some element of political calculation, but the administration behaved generally as if the Act did not exist.

The Ethics in Government Act, one of the cornerstones of the post-Watergate reforms, also proved not up to the task of constraining the President. Most glaringly, the Act exempts the President from its proscription on conflicts of interest. However, for 40 years, presidents have complied voluntarily—establishing a tradition that has become part of our democratic safeguards. Indeed, as a candidate, Donald Trump vowed to build a “firewall” between his presidency and his businesses. The reality was far different. He placed his assets in a revocable trust run by his sons for his own benefit—as one law professor put it, “the illusory window dressing of a trust.” In sum, the Trump administration made no distinction between legitimate advantages that come with incumbency and illegitimate and even illegal ones. It suffered no consequences for this disregard.

I understand that many of these legal and cultural restrictions may appear to some as bureaucratic red tape. Some might argue that they are illegitimate shackles on the presidency. However, they are properly understood as key parts of the web of laws, traditions and understandings that enable us to hold presidents accountable and protect against corruption and self-dealing.

Third, the President eroded the constitutional requirement of Senate confirmation for officers of the United States by evading the Federal Vacancies Reform Act, which limits who can serve without confirmation as the temporary occupant of a position that requires Senate confirmation and for how long. In 2019 he stated that he “sort of like[d]” having acting officials because it gave him “more flexibility”—meaning they would be more beholden to him rather than allies in Congress.

Fourth, the past four years revealed major flaws in the ability or willingness of the Article III courts to check abuse of executive power. To be clear, the courts carried out their role in thousands of cases seeking judicial review of policies and actions of the Trump Administration. And for that, I am grateful. But they also failed to resolve key issues where their oversight was critical. On key issues the courts declined to rule or were so slow in reaching final resolutions that the administration was able to run out the clock. Most saliently, the courts failed to resolve litigation over funding for the border wall, the cases claiming that the President was in violation of the emoluments clause and the litigation over congressional subpoenas. The courts failure to resolve these key issues enabled the Administration to evade judicial review on critically important constitutional issues.

In sum, too many of our safeguards were unenforceable—because they were based in custom and tradition, or were rooted in laws with weak, ineffectual enforcement mechanisms, or because judicial remedies were simply not forthcoming in a timely way. The willingness of our society to tolerate these transgressions of laws was damaging in important ways—it undermined the notion that the president is bound by law and by the norms established through tradition. Even those who called the President out on these transgressions were worn down by a constant barrage of wrongdoing. This normalization of the abnormal, built up to the President’s refusal to acknowledge his defeat even after states had certified electors and of course, to the seizure of the Capitol on January 6th, as his supporters felt free to violate laws in the pursuit of their cause.

I want to offer two takeaways from this discussion. First, we need to do a better job building our traditions and norms into concrete obligations. This, of course, was a major project coming out of Watergate when laws like the Ethics in Government Act were passed. We know now that this system of checks is simply not up to the task. I commend the series of reports by Fordham Law School’s Democracy Clinic, led by Dean John Feerick and John Rogan as a starting place. Important work has also been done by the Brennan Center for Justice’s Taskforce for the Rule of Law and Democracy and CREW—The Center for Responsibility and Ethics in Washington. I cannot go through all of the recommendations in this lecture and each of the areas addressed deserves careful study, but I will mention a few. The Fordham Democracy Clinic recommends enactment of legislation prohibiting presidential interference in individual investigations and prosecutions, except when core presidential functions are implicated. Other recommendations offered by these reports focus on strengthening protections against the use of the presidency for private gain, including making the president, vice president and White House staff subject to proscriptions on conflicts of interest, requiring disclosure of tax returns, modernization of financial disclosures and reform of the Office of Government Ethics to add enforcement and investigatory powers. Inspector generals should be given more security, as some have proposed.

The second larger take away from the Trump experience is that it takes more than law to preserve our democracy. It takes an understanding and appreciation of the tradition, norms and culture of democracy and a commitment by each of us to play our part in its operation—a commitment that Charles Evans Hughes stood for and lived. The only way to really check an abusive president is through the actions of good people in key roles—people who look to the shared understandings of their public duties and the values that lie behind them.

Our culture of democracy is clearly in danger. When the rioters broke through the doors and pillaged the Capitol, our society recoiled in a visceral way. That point, however, should never have been reached. Americans should have been repelled by the self-dealing and corruption of the administration, by the evasion and disregard for laws and traditions. Leaders of both political parties should have made it clear from the start that it was unacceptable. Had they done so, the past two months would have been very different. The fact that as a society we failed to expect, demand and require these standards is itself a major warning sign. Our tolerance of the Administration’s transgressions was corrosive—it sent a message to President Trump’s supporters that the administration was not bound by our regular set of rules, and that they were not either.

The task then, is to sustain and nurture our culture of democracy. In this project, the legal profession can and must play a critical role. As lawyers, we have a special relationship with the tradition and culture of American democracy. We benefit from it and earn our livelihood from it. Our privileged position comes with responsibilities—to educate and communicate the importance of this richer and fuller notion of our democratic system. As my colleague Russ Pearce has succinctly put it, lawyers have a duty to democracy.

The events of the past four years reveal that we have not done enough, and we have not been effective. We must look within and ask hard questions about how we in the legal profession can better educate attorneys who will work to uphold and improve democratic institutions, rather than tear them down.

In addition to looking hard within the legal profession, we also need to reach beyond ourselves. Projects like the Second Circuit’s initiative Justice for All: Courts and the Community—which opens up our courthouses so children can learn—are a superb starting point. This does not simply mean teaching about the three branches of government. It means helping others cultivate habits of discourse that foster critical thinking and reasoned discussion—qualities that are essential to democratic governance.

And as a law school dean, I know that we in the academy have a mission to explain our system to the public, to use our expertise to improve it and to convey to the next generation of lawyers an understanding of their own role upholding the values and culture of democracy.

Finally, nurturing the culture of our democracy does not mean accepting things as they are. Our democracy is incomplete, flawed—a work in progress. We have a responsibility to rid our institutions of injustice, so that they are worthy of trust and respect. Racial inequality is inconsistent with the fundamental premises of democracy and undermines the legitimacy of our institutions. We fall far short in access to our justice system. The goal is not a return to a mythical past, but rather a way forward which addresses the injustices in our society and draws on the capacity of our collective will—acting through our public institutions—to correct these injustices and accomplish our common ends.

I have striven to emphasize today that our system depends not simply on the “big stuff” like checks and balances or Marbury v. Madison, but on a web of smaller pieces that are vital to the texture of our democracy. The wanton disregard of statutes like the Ethics in Government Act, the Hatch Act, the Federal Vacancies Reform Act and so much more, coupled with disregard for informal traditions and understandings around what it means to be President proved to be dangerous warning signs that should have spurred greater response. I think that if Charles Evans Hughes were with us today, he would not shrink from the task ahead—he lived through a pandemic, the great depression, the rise of fascism and two world wars. He would recognize our ability to work together on the great project of American democracy.

Matthew Diller is the Dean and the Paul Fuller Professor of Law at Fordham Law School. He is grateful to Fordham Law students Eden Lichaw and Daniel Lutfy for their insights and research, and to colleagues John Feerick, Joseph Landau, Russell Pearce and Jed Shugerman for their suggestions and comments on drafts of the lecture.

* Reprinted with permission from the “2.26.21 Newspaper edition of the “New York Law Journal”© 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.