Does Political Convention Even Matter Anymore in Post-Mueller America?

Since the beginning of the 2016 election season and straight through to the end of the Mueller investigation, President Donald Trump has lodged a relentless war on the conventions of American democracy. He has made every effort to thoughtlessly sweep aside the status quo in favor of his own whims. The GOP has fully embraced Trump's lack of respect for conventions and precedents in American government that were established by their own party as well as the Democrats over decades in order to protect the institutions of American democracy from the undue influence of one man. The erosion of democratic norms poses great threats to the public's trust in its government and the rule of law. Many on the right welcome the negation of these conventions because they represent the sort of shake-up of the system and hardball winner-takes-all politics that they want. That desire for politics defined by scrappy disregard for process and tradition is a reaction against the West Wing-style politics of the Obama era. For the rest of America, the shift away from support for political norms seems to be not the productive injection of vitality into an ossified status quo that its enactors say it is, but rather an attack on the post-Nixon conception of American politics as requiring at least lip service to the idea of decorum and compromise. The Mueller report and its lack of clarity regarding the possibility of obstruction of justice charges against the President has effectively closed off any way of returning to that vision of polite American political discourse by ensuring that future presidents will consider breaking conventions surrounding special Council investigations again should the need arise. 

The first inkling of troubles to come was evident early on in Trumps’ entry onto the political stage in 2015 in his refusal to agree to support the eventual Republican nominee during the Republican primaries. When asked during a live debate whether or not candidates at that time would pledge their support for the eventual primary victor, Trump was the only one to demur. That was a shocking move at the time, but it was nothing compared to what came later. The first real attack on post-Watergate convention came later on in the general election when Trump steadfastly refused to release his tax returns. As the reader may recall, during the Watergate scandal, the American people learned that, among other illegal activities, President Nixon had avoided paying over $440,000 in taxes. In response to mounting public pressure on the issue, Nixon famously said, “People have got to know whether or not their President is a crook. Well, I'm not a crook.” After initially refusing to allow his tax returns to be scrutinized by the IRS or the public, he soon relented and made his returns public. Nixon, of course, resigned less than a year after claiming he was “not a crook,” but he came to understand that the American people expect those who hold our country’s highest office to be open and transparent about their finances. By releasing his tax returns, a precedent was established for future presidents to do the same. That is, of course, until Trump ran for the office. Even after winning in 2016, Trump has avoided releasing his tax returns, and at this point, it is likely that he never will. His daring rejection of the American public's right to know about our leader's financial situation amounts to an endorsement of corruption in the highest offices of the federal government. Many had hoped that Mueller’s investigation would force the details of the President’s tax liability to be made public, as had happened to Nixon. But it did not, and so far, the Special Counsel has failed to settle the taxation issue.

But the consequences of such an anemic conclusion to the Mueller investigation go far beyond tax returns. The completion of the Mueller investigation has come at a time when the debate surrounding political norms and conventions is at a fever pitch in American politics. President Trump's dismissal of the norms and precedents surrounding the relationship between a sitting president and a special counsel investigation during the Mueller investigation and the lack of consequences for that conduct constitute a radical expansion of presidential powers that would have been unimaginable in the years directly after Watergate. The end of the Nixon era and the Watergate crisis led to the formation of conventions that were agreed upon in order to prevent future presidents from interfering with the rule of law. For example, after Watergate and before Trump, it would have been unthinkable for a president to fire their attorney general for not protecting the president from an investigation. Trump did that twice and nothing happened to him. This sets a precedent for future presidents and breaks that political convention possibly forever. In the future, presidents who come under investigation will be much more likely to fire attorney generals they do not like and install loyalists at the highest levels of the justice department. With the failure of Robert Mueller to come to a decision on the question of obstruction of justice regarding Trump's dismissal of James Comey for investigating the possibility of a conspiracy with Russia to influence the 2016 presidential elections, the Justice Department effectively signalled that it will not challenge future presidents who attempt to insulate themselves from the rule of law in this way. 

These and the countless subsequent transgressions that Trump has perpetrated upon the political conventions of our society force the nation to grapple with the following question:  does convention matter anymore? This is not a small question. The stakes are high both for our nation and in particular for Democrats as they begin to choose their nominee for the 2020 elections. For the nation, the question is about the rules of political process and the power of the presidency. When presidents break conventions how should we the people judge their actions, and by what standards should we determine when broken conventions must be reinforced? After all, Trump’s supporters have a point: not all conventions are good. Many conventions are the result of antiquated political and social cultures within the bureaucracy of the United States government that belong to past eras and which prevent the effective governing of the country. This is the reasoning often used by Republicans when they selectively break conventions in Congress in order to win the upper hand over Democrats. To be sure, Democrats participate in the same sort of selective norm-breaking, but it is only recently that Democrats have begun to debate within the party the extent to which breaking these norms is justified. For the Democrats the question is this: when the opposite party is both composed of legislators and also lead by a president who openly disregards convention when it suits them, should the Democrats follow suit and abandon convention in order to win political battles so that they can enact their policy agendas? If the other team will not play by the rules, why should they?

These two questions that Trump’s conduct pose, the first to the nation and second to the Democratic party, are intimately connected, as a thoughtful consideration of the Mueller investigation will expose. The following is the Democratic Representative and House Intelligence Committee chairman Adam Schiff’s recent statement as an explanation. It is worth reading the whole statement:

“A consistent with the presence of tax I do want to respond in this way my colleagues may think it's okay Russians offered dirt all the Democratic candidate for president is part of what was described as the Russian government's effort to help the Trump campaign you might think that's okay my colleagues might think it's okay that when that was offered to the son of the president but a pivotal role in the campaign that's present son did not call the FBI he did not adamantly refused that foreign help no instead that son said that he would love to help with the Russians you might think it's okay that he took that meeting you might think it's okay that all matter for the campaign share someone with great experience running campaigns also took that meeting you might think it's okay that the president's son-in-law also took that meeting you might think it's okay that they can seal it from the public you might think it's okay that their only disappointment after that meeting was that the dirt they received on Hillary Clinton wasn't better you might think that's okay you might think it's okay that when it was discovered a year later that they lied about that meeting and said it was about adoptions you might think it's okay that the president is reported to have helped dictate that lie you might think that's okay I don't you might think it's okay that the campaign chairman of a presidential campaign would offer information about that campaign to a Russian oligarch in exchange for money or debt forgiveness you might think that's okay I don't you might think it's okay but that campaign Sherman offered polling data campaign pulling data to someone linked to Russian intelligence I don't think that's okay you might think it's okay that the present himself called on Russia to hack his opponents emails if they were listening you might think it's okay that later that day in fact the Russians attempted to hack a server affiliated with ad campaign I don't think that's okay you might think that it's okay that the president's son-in-law sought to establish a secret back channel of communications with the Russians to a Russian diplomatic facility I don't think that's okay you might think it's okay that I'm associate of the president made direct contact with a GRU through guccifer to and Wikileaks and considered that is considered a hostile intelligence agency you might think that it's okay a senior campaign official was instructed to reach that associate and find out what that hostile intelligence agency had to say in terms of dirt on his opponent you might think it's okay that the National Security advisor designated secretly conferred with the Russian Ambassador about undermining us sanctions and you might think it's okay he lied about it to the FBI you might say that's all okay you might say that's just what you need to do to win but I don't think it's okay I think it's immoral I think it's unethical I think it's unpatriotic and yes I think it's corrupt NFL dance of collusion I have always said that the question of whether this amounts to proof of conspiracy was another matter whether the special counsel could prove Beyond A Reasonable Doubt the proof of that crime would be after this special counsel and I would accept his decision and I do he's a good and honorable man and he is a good prosecutor but I do not think that conduct criminal or not is okay and the day we do think that's okay is the day we will look back and say that is the day America lost its way.”

True to form, the GOP and President Trump immediately called for Rep. Adam Schiff’s resignation. But his statement serves as one of the clearest elucidations of the problem facing Americans during this time of political upheaval when norms and conventions are being broken and rewritten. The question that Representative Schiff so rightly asks is the following: is any of this okay? And as Representative Schiff rightly points out the answer we give will dictate the future of our nation. 

To answer this question, we must understand what conventions are and why they exist. First, let's define what we mean by the word convention. In the context of politics, convention refers to norms, standards, and customs that are agreed to generally either explicitly or implicitly by all parties who participate in a given activity or institution. These conventions play many roles from a sociological perspective in allowing human beings to organize together and work as a team to accomplish goals. Without these customs, standards, and norms that we call conventions, human beings would be unable to cooperate with each other in many social contexts. To give an example of a basic social norm, it is customary to shake someone's hand when you meet them for the first time in many western cultures. Another example comes from photography: in the 19th and early 20th century, it was a convention to avoid smiling in photographs. While these are examples of unwritten conventions, many conventions are stipulated explicitly in writing or speech by participants, and this is the case for many political conventions. For instance, the United States explicitly legislates that motorists should drive their cars on the right side of the road. That convention is important enough that, in order to maintain the safety of pedestrians and motorists, the United States government has codified it in law. 

Conventions have two sides to them that are worth considering within the context of our current political climate. First, conventions are routines that allow human beings to behave in predictable ways. Thus, they facilitate cooperation and planning. Government institutions rely on these routines in order to plan their operations. This is especially true in places like Congress where parties and interest groups will plan their strategies for enacting policy by accounting for conventions and using precedent and previous behaviors as an indication for how the government will function in the future. If a party or group does not know how things work, then they will not be able to effectively make plans and pass legislation. Of course, smaller precedents and conventions can be broken for a minimal political cost, but the larger a norm or convention is, the more damaging politically it would be to break it. Usually, the costs of breaking such political norms are prohibitive enough to prevent one party or individual from breaking them, but such calculus assumes that those in power care about the future in the first place. When politicians no longer pay heed to long-term future planning, the consequences of breaking conventions no longer play into their decision-making. This sort of thinking is evident in Trump’s attitude toward the presidency in general: he won't be around in a few election cycles, so why should he care what damage is done to these institutions by breaking norms and conventions? The same sort of cynicism is on display when Mitch McConnell and the GOP play games with convention in the Senate. Why should they care about the future if, by sacrificing a few precedents and conventions now, they can win the opportunity to enact their long-term policy goals? 

The second side of conventions that is worth considering has more to do with ethical responsibility than political utility. Conventional behaviors have a moral component that is potent and complex. In this sense, convention establishes a bond of trust between a political actor and both their colleagues and society at large. That public trust stems directly from the solemn oaths elected officials swear when they take office, but it is often so rarified by the time it reaches the smallest operations of government bureaucracy that the relationship between the public trust and the idea of justice that undergirds American democracy is easy to overlook or dismiss. For instance, a politician who moves an important meeting to a time that is inconvenient for their adversaries might see the resulting harm that is done to the public trust as small enough to be worth the sacrifice. This sort of norm-breaking is to be expected in institutions to some degree, but if it gets out of hand, if larger more important norms are broken on a regular basis with little or no consequences, the legitimacy of a government to rule its people will eventually be threatened. When conventions are viewed as options as opposed to duties, when all that is left of a convention is its utilitarian function as grease on the edges of major political machinations, the trust between a politician and their colleagues and constituents is diminished. 

Whatever the future holds, the damage that the Mueller report has done to the respect for political conventions in Washington may be its enduring legacy. When the dust settles over Attorney General William Barr’s summary and when Trump is long gone from the office of the presidency, future generations will grapple with the outcome of this saga. Hopefully, future politicians exhibit a desire to return to the norm following ways of previous presidents. But unless the public speaks out against the bad actors and unless citizens vote out presidents who display the disregard for public trust that Trump has so far shown, it is unlikely that future presidents will be interested in taking the high road when the low road is so clear of potholes. The Democrats must now ask themselves whether they are ready to adapt as a party and in what direction that adaptation will move. Many Democrats seem ready to embrace hard-hitting political tactics in favor of enacting a progressive policy agenda. These Democrats tend to be concerned with the immediate threats of inadequate healthcare and climate change. Other Democrats are more concerned with ensuring that the foundations of our democratic institutions are on a firm footing and therefore, they prioritize returning to the familiar norms and conventions of Obama and Bush-era politics. The Democrats will indicate their initial answer as they choose a candidate for the 2020 elections. So far, the polls favor conventional charismatic politicians like Biden and Beto. But progressives like Sanders and Warren are still polling well. Whichever way the Democrats go, one thing is clear: the end of the Mueller investigation has put even more pressure on Democrats to oust Trump from the presidency in 2020. If they fail to do so, the future of the Democratic party will look very dim indeed. 

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