The acrimonious departure of Richard V. Spencer as secretary of the Navy over the issue of President Donald Trump stepping in on behalf of Navy SEAL Eddie Gallagher is a model case of a duly elected commander in chief exercising the fullness of his prerogatives under the Constitution. This is exactly the kind of aggressive decision-making Trump was sent to the White House by voters to undertake.
It may take a long time for the lesson to be learned, but this president is determined to teach the multitude of underlings in the executive branch that they weren’t elected to anything; they work for him, not vice versa, and their job is to follow their boss’ orders. (You know, like all those millions of stiffs in the private sector at whom government employees like to sneer.)
A court martial this year cleared Gallagher of murder but convicted him on the far-lesser offense of posing with an enemy corpse for a photograph. In addition to a punishment of time served, Gallagher was demoted in rank. Trump countermanded that measure and returned Gallagher to his previous rank of chief petty officer, ruffling the feathers of those within official channels.
There can be no question Trump is the only president in memory who would have done this, Republican or Democrat. One has to go back generations to imagine another willing to defy the Pentagon bureaucracy and its patrons in Congress. And whoever such a past president might have been, a brash iconoclast such as Teddy Roosevelt perhaps, would not have been pitting himself against an establishment leviathan anywhere near as formidable as today’s.
“I no longer share the same understanding with the commander in chief who appointed me, in regards to the key principle of good order and discipline,” Spencer claimed in a sour departure letter. The naval chief had tried to make a deal with the president himself – going over Defense Secretary Mark Esper’s head – to persuade Trump to allow the Navy to undertake usual protocols regarding Gallagher, including a review board. Oddly enough, in doing so it was Spencer who was defying the much more fundamental protocol of dealing with your own immediate superior. Esper described himself as “flabbergasted.”
Official Washington may be enraged with Trump for bypassing accepted procedure, but Trump’s unorthodox use of his commander-in-chief powers is common sense to millions of Joe Sixpacks who see in Gallagher nothing but a hero who let his commitment to dispatching terrorists to their final reward become overly exuberant in the course of doing a very dangerous job.
In the same vein, until Trump it was a given for presidents to wait until days before they handed the baton to their successor before issuing pardons; pardons were thus a shameful, indefensible way for a president to cheat on behalf of an ally or interest – the quintessential example being Bill Clinton’s pardon of financier and tax evader Marc Rich on his final day in office in January 2001. Among Rich’s offenses was doing business with Iranian oil interests while 52 Americans were being held hostage in Tehran in 1979-81.
Trump threw out the book on pardons and commuted sentences, stepping in on behalf of the famous immigration hardliner Sheriff Joe Arpaio, who had been convicted of contempt of court, for one, and unknown offenders such as non-violent Florida drug dealer Ronen Nahmani, who had no criminal history and yet was sentenced to 20 years in prison.
That’s exactly the kind of travesty that inspired the Framers of the Constitution to bestow the president with pardon powers. What’s more, Trump doesn’t seem to time pardons; he apparently carries them out when analysis confirms that the recipients are worthy – again, far more in line with the Framers’ vision than with modern Washington’s sneaky, petty ways.
The Administrative State vs. the Ballot Box
The whole point of a system relying on popular elections is to allow the people to effect change, and yet every prosperous country with representative government also has within itself a massive permanent apparatus, reflexively resistant to change – that is, when the change is to shrink the size and influence of the state.
Call it what you like: The permanent government, the “ruling class,” as Boston University’s Angelo Codevilla called it, the “deep state,” or the Swamp, the term Trump used in his successful campaign. But Washington’s institutionalized bureaucracy is no wild conspiracy theory; indeed no conspiring is necessary when there is a firm consensus on the general objectives.
Earlier this year, Hillsdale College lecturer and Claremont Institute senior fellow Michael Anton, formerly a Trump national security aide, wrote in the Claremont Review that “In the older understanding, freedom consists primarily of steering the ship of state via public deliberation.” But now, “Subjects once open for debate become closed as science supposedly discovers the workings of History with a capital H. There is no politics because there is nothing for man to deliberate or choose … exactly the soft despotism about which Alexis de Tocqueville warned.”
There is now within our constitutional government “an unconstitutional fourth branch — the bureaucracy housed within the executive branch — which looks upon its nominal master with indifference or bemused contempt.”
According to Anton, citing the work of University of Nevada, Reno, political science professor John Marini, “The ends of our government are no longer determined by the people through public deliberation constrained by moral and natural limits; nor are they even to give the people what they want regardless of those limits. They are rather to force upon the people what ‘science,’ the research universities and public intellectuals have determined they should want.” Under such precepts, “limits on administrative power are not merely unnecessary but harmful.”
Marini has written of how the “bureaucracies have developed the instinct for self-preservation at all costs. They do not, however, defend themselves on the basis of self-interest. Rather, they see themselves as defenders of institutional rationality, as a part of the social intelligence that establishes the legitimacy of rule within the administrative state,” he writes.
Spencer, justifying himself by defending “the key principle of good order and discipline,” falls perfectly into the category of “institutional rationality.” Like Spencer, “The bureaucrats, their bosses, and their cultural cheerleaders … all insist that the administrative state is nonpartisan and impartial,” Anton writes. “These are patriotic career civil servants just doing their jobs, goes the refrain whenever the administrative state does something that may seem, on the surface, partisan, anti-democratic, or punitive.”
Within such an unwieldy governmental behemoth, a supposed underling such as Spencer actually tried to negotiate a deal with his commander in chief. Juxtapose that with someone who recognized his subservient status, former Trump White House counsel Don McGahn, who this week was ordered by Obama-appointed U.S. District Court Judge Ketanji Brown Jackson to testify before a House whose majority is determined to blemish Trump with impeachment and prevent his reelection next year. Another four years of Trump would be devastating to the “patriotic career civil servants just doing their jobs.”
Jackson, who took 120 pages to tell McGahn to appear before Congress and referred to presidential immunity as “a fiction,” is apparently little impressed by the Supreme Court’s affirmation at the height of Watergate of “the valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties.” (How would Jackson, a high judical branch official, like her clerks subpoenaed to discuss the conversations that take place within her chambers?)
Jackson declared, “it is a core tenet of this nation’s founding that the powers of a monarch must be split between the branches of the government to prevent tyranny.” The reality, however, is that one branch, the legislature, feeds with taxpayer dollars another branch, the executive, that is all too often unresponsive to its elected head — despite the president being the only person elected by the voters of he entire nation. Meanwhile, the third branch, to which Jackson belongs, defends that disguised tyrannical centralization of power.
— Written by Thomas McArdle
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