Keeping our republic of laws

President Obama, in his Havana speech, described America and Cuba as “two brothers who’ve been estranged for many years.” The superficialities he cited in defense of this common life and heritage aside, the United States stands in the British tradition of liberty under law, not Cuba’s Spanish dictatorial tradition. Cuba has never had a constitution that institutionalizes limited government and republican liberty, nor have the Cubans ever been the sort of people who insist on it.

It is from the standpoint of this legal heritage that Donald Trump’s current political strength fills so many people with fear. A recent poll asked, “What one word best describes how you feel about the possibility of Donald Trump as president?” The top six responses were: scared, disaster, frightened, terrified, horrified, and disgusted. This fear stems in part from the candidate’s wanton disregard for what has made America great since her founding: the rule of law in defense of liberty.

Trump says he would like to “open up the libel laws” so that “when [newspapers] write purposely negative and horrible, false articles, we can sue them and win lots of money.” A fearful press is not a free press.

He has strayed far from the tradition of American civility by suggesting physical violence against protesters at his rallies. He has also encouraged crowds to “knock the crap out of them, would you? … I promise you, I will pay for the legal fees.”

His brutality shows itself also in how he says he would behave as commander in chief. He would target the families of terrorists. Meeting barbarism with barbarism, he argues, is necessary for deterring these non-state actors who are entirely unrestrained by civilized norms of war. He also blithely advocates torture, saying we should “go tougher than waterboarding” when interrogating captured terrorists.

Former CIA Director Michael Hayden said that, faced with such orders, “the American armed forces would refuse to act.” Citing this, Fox News anchor Bret Baier challenged Trump’s tough talk during a GOP debate, asking him what he would do if the military refused to carry out these orders. Trump simply affirmed, “They won’t refuse. They’re not gonna refuse me. Believe me.” He added, “If I say do it, they’re going to do it. That’s what leadership is all about.”

He was subsequently careful to add that we need to “change our laws” to allow tougher measures, but he showed no concern for the constraints of law at the time. Perhaps someone told him that military personnel take oaths of allegiance not to the president but to the U.S. Constitution. They are sworn to “obey the orders of the President” only “according to regulations and the Uniform Code of Military Justice.”

The integrity of our constitutional system depends on the willingness of the co-equal branches of government to check each other’s overstepping. If Donald Trump wins the White House, he will be, for all practical purposes, a president without a supporting party in Congress. So if he acts as he says he will, he will be uniquely vulnerable to impeachment, conviction, and removal from office. Maybe that would be a healthy lesson for future presidents and would strengthen the cause of liberty so sorely needed in this post Reagan-Bush era.