Donald Trump is attacking the rule of law and may well get away with it

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ON THE EVIDENCE available, most Americans do not think President Donald Trump has committed a high crime or misdemeanour. Only a third of voters say he should be impeached over his alleged complicity in Russia’s election-hacking and alleged effort to stop the Justice Department investigating it. The matter was hardly discussed in the mid-terms, and the most prominent Democrats who aired it—such as Beto O’Rourke in Texas’s Senate race—lost.

Yet Mr Trump’s alleged misdemeanours may already have met the standard for impeachment set by Richard Nixon. That was the implication of a remarkable article published on the Lawfare blog this week by the FBI’s former general counsel, Jim Baker.

Mr Baker and his co-author, Sarah Grant, made their point, without referring to Mr Trump specifically, by drawing on a newly released trove of evidence from the Watergate investigation. They focused on Nixon’s effort to lean on a Justice Department official, Henry Petersen, who was overseeing it at the time. Nixon repeatedly asked whether he was under investigation. After Petersen informed him that two of his senior aides were, and should be sacked, the president defended them as “fine, upstanding guys”. As an effort to derail the investigation in order to save himself, Nixon’s action represented, according to one of the three impeachment articles he later faced, a “disregard of the rule of law”.

The parallels between then and now are unmistakable. Mr Trump badgered James Comey to say whether he was under investigation in the Russia probe that the then FBI director was leading. After the acting attorney-general, Sally Yates, informed the administration that Mr Trump’s national security adviser, Mike Flynn, had had secret communications with Russian officials and lied about them, Mr Trump sought to protect him. According to Mr Comey, the president urged him to lay off Mr Flynn because he was a “good guy”. After Mr Comey refused, Mr Trump sacked his FBI director. Significantly, Mr Baker was one of half a dozen FBI officials briefed by Mr Comey on these developments at the time.

Whether Mr Trump’s alleged transgression was as bad as Nixon’s may depend, in another Watergate parallel, on what he knew about the Russian plot and when he knew it. Robert Mueller, to whom the president’s lawyers dispatched a long-awaited list of written responses to questions this week, is trying to ascertain that. The special counsel is reported to be probing what Mr Trump knew about the Russians’ effort to hack his Democratic opponent’s emails, shortly after he had urged them to do so, and what he knew about a meeting of his senior advisers with a group of well-connected Russians who were promising dirt on Hillary Clinton. Perhaps, in the absence of a smoking gun, the special counsel will find Mr Trump has no case to answer. But either way he seems unlikely to suffer Nixon’s fate.

That is partly because the tribal loyalties that might have saved Nixon are fiercer now. On the day he resigned, after being informed that Republican congressmen would not defend him, half his party’s voters still backed him. With the benefit of stronger partisanship, weaker politicians and a 24/7 propaganda machine in Fox News, Mr Trump could count on stiffer Republican protection.

Another reason he appears likelier to lower the standards of his office than to be held accountable to them relates to the peculiarities of his political persona. Nixon was a committed rule-breaker who pretended not to be. When the evidence against him emerged, it was therefore damning. By contrast, Mr Trump has consistently promised even more dramatic rule-breaking than he has delivered—almost no matter what Mr Mueller may find.

He vowed to jail Hillary Clinton. Yet after being advised by his White House counsel to drop that idea, it was reported this week, he did so. He has threatened to shut down Mr Mueller’s investigation since it was launched. In that context, his allegedly improper remarks to Mr Comey might seem modest; or at worst consistent with what he has been saying openly. Mr Trump has in this way scrambled expectations of presidential behaviour.

The favourite mantra of Trump apologists—“Take note of what the president does, not what he says”—is illustrative of that. It makes sense only when measured against the most dramatic, and indeed unimaginable, of his threats. That is in part because the president’s words also have impacts. Over the course of his near-daily attacks on Mr Mueller’s investigation and the Justice Department, Republican trust in those institutions has collapsed.

It is also nonsense because, while not following through on his biggest threats, Mr Trump is making good on a lot of lesser ones, which would in normal times be considered beyond the pale. “I measure a president’s sensitivity to the rule of law by his actions, not his off-the-cuff comments, tweets or statements,” huffed one of his most shameless defenders, Leonard Leo of the Federalist Society, this week. This rather skated over the fact that Mr Trump had just sacked his attorney-general, Jeff Sessions, and appointed in his place an inexperienced and possibly illegitimate acting successor, Matthew Whitaker. And that he did so, a reasonable understanding of his words suggests, in a bid to derail Mr Mueller’s investigation into himself and his closest family members.

What the Framers feared

If the special counsel survives that manoeuvre, he will not recalibrate his view of the rule of law as Mr Leo has. That is why the president fears him. Yet any damning verdict on Mr Trump by Mr Mueller would be effective only if there is political will to enforce it. That is why the president’s assault on the dignity of his office and Congress’s related unwillingness to constrain him is so serious. There is a reasonable view that, to instigate a constitutional crisis, he would have to defy a court order or subpoena. An alternative view is that the corrosive effect of his lesser but relentless war on the political system will ensure that the need for such high-risk defiance will never arise.

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