In the space of a week, Trump fired FBI Director James Comey, lied about why he did it, then admitted in a TV interview that, actually, he prematurely terminated Comey’s 10-year term because he was annoyed with the FBI’s ongoing investigation into his campaign’s ties to Russian officials.
It appears that Trump specifically asked Comey to end the investigation after he fired Michael Flynn, his first national security adviser, ostensibly because Flynn had got caught in a lie to the vice president about a conversation with the Russian ambassador. According to Comey’s notes on the conversation, Trump said, “I hope you can let this go.” Comey didn’t let it go. And one suspects that’s why he’s now updating his LinkedIn profile. Meanwhile, it has emerged that Trump asked the director of national intelligence and the director of the National Security Agency to deny that the FBI was investigating his campaign.
The whole affair reeks of obstruction of justice, which has not gone unnoticed by Rod Rosenstein, the deputy attorney general, who appointed a special counsel to investigate the mess last week. “We cannot allow this to go unchecked,” said Al Green, a Democratic Congress member from Houston, who called for the president’s impeachment from the floor of the House. “The president is not above the law … I am a voice in the wilderness, but I assure you that history will vindicate me.”
Comey’s firing is the latest and worst in a string of outrageous abuses of office. Let’s be clear: The president of the United States asking an FBI director to end an investigation into the activities of his own campaign, and his own administration, and then firing the FBI director — who is meant to be politically independent — because he refused to stop doing his job, is a brazen assault on the rule of law. It’s a monumental breach of the laws and norms that protect citizens from the tyrannical abuse of violent state power.
What is “legitimacy,” really?
Trump’s presidency has been dogged with doubts about legitimacy from the beginning. There’s a real possibility that he would have lost but for Russian interference. At this point, however, that in itself is not the biggest stain on Trump’s legitimacy. He has truly undermined his legitimacy by his actions in office.
What is “legitimacy” and why does it matter? It’s a difficult concept, but a crucial one. Political power is backed by violence. It is inherently dangerous and the temptation to abuse it is great. That is why it is essential that the people who wield power have the right to do so, and why political theorists spend so much time thinking about when they do have that right, and when they don’t.
Political authority is legitimate only when it is exercised according to the legal rules and social norms that keep it aligned with the public interest and prevent its egregious abuse. When a leader flagrantly violates those rules and norms, he effectively voids the legitimacy of his claim to power. His authority becomes authoritarian and his power becomes despotic.
Trump’s determination to personally profit from the presidency, his insistence on giving positions of power to family, his manifest indifference to truth, his attacks on an independent media, his use of the bully pulpit to run down the authority of the judicial branch, and his interference with the Justice Department all combine to strike a mighty blow against the foundations of his own legitimacy. Indeed, firing Comey takes the president’s hostility to the rule of law to another, more alarming, level. It’s time to seriously consider the possibility that Trump, in just four months, has stripped himself of legitimate title to the authority of his office.
This is a pretty radical claim. To test whether it’s reasonable, we need to dig into what it means to say that anyone, much less a president, does or does not have legitimate authority. For now, the important thing to keep in mind is that those who wield legitimate authority have a special power: to create duties of obedience in others. But when authority isn't legitimate, it isn't really authority, and it need not be obeyed. When the authority in question is the president of the United States, permission to disobey the boss (because he isn’t really the boss!) has profound implications.
Questions about legitimacy are questions about the validity of claims to authority, and the obligations of obedience that flow from authority. To have authority is to have the power to give other people reasons, even obligations, to do things.
If you’re 12 years old and I’m your dad, when I say, “Go get ready for bed,” that gives you a reason to get ready for bed — whether you want to or not. If I’m your supervisor at the office, and I tell you to put a cover sheet on the TPS report, that gives you a reason to put a cover sheet on the TPS report. Indeed, you are obliged to put a cover sheet on the TPS report. If you fail to meet that obligation, you will have done something wrong, and it would be fair to impose some kind of punishment on you.
Authority is power — the power to create reasons for action and obligations of compliance in others. But this power depends entirely on the authority being real or legitimate.
When a 12-year-old shouts at her mom’s new husband, “You’re not my dad! You can’t tell me what to do!” she’s making a claim about the legitimacy of his authority. She’s saying he doesn’t check the boxes that would qualify him to issue orders she ought to obey. Likewise, if no one but your officious junior colleague, Vince, tells you to put a cover sheet on the TPS report, that’s just a suggestion. Vince doesn’t have the authority, even if he acts like he does. You can ignore him with impunity.
Roles that confer authority on their occupants abound. Families, firms, churches, clubs, and governments are composed of people who inhabit roles that confer authority on their occupants. Rules, whether they be conventional, institutional, legal, or moral, set out the conditions required to qualify for a role and to legitimately exercise its authority. These rules populate our world with more-or-less objective social facts about authority — facts about who has the power to give others reasons to act.
It’s a fact that Germans in Potsdam don’t have a duty to comply with the laws of Malaysia. It’s a fact that your boss, but not Vince, can give you a reason to put a cover sheet on your TPS report just by telling you to do it. You might not be able to tell the difference between a genuine police officer and an imposter cop in a stolen uniform, but it’s a fact that one of them has the authority to arrest people and the other doesn’t. This matrix of rules, roles, and reasons is the natural human habitat. It’s part of what Aristotle meant when he said that humans are “political animals.”
Political legitimacy is unique because of the unique — even deadly — power that government holds
Political authority isn’t essentially different from the authority of football coaches and middle managers. It works the same way. When it’s legitimate, it creates duties of obedience. When it’s not legitimate, it’s not really authority, and there is no duty to obey it all.
But political authority does possess some distinctive qualities — important ones. Specifically, political authority is distinguished from other forms of authority by its fundamentally non-voluntary character and its intimate relationship to violent coercion. When you take a job, you freely opt into a scheme of authority in which you can conceivably get fired for failing to put a cover sheet on a TPS report. But you can’t so freely opt in or out of relationships of political authority — and if you break the law, the government can use physical coercion, or the threat of it, to take away your property, your freedom, and even your life.
Ideally, a widespread recognition of the legitimacy of political authority does most of the work in generating obedience to the law; threats of coercive sanction operate mainly as a backstop that helps solve collective action problems and keeps those who weren’t going to comply anyway in check. But we can’t always count on voluntary compliance to maintain the level of order required for a healthy, liberal society. We can’t do without the coercive backstop. And that means that politics, by its very nature, plays with fire.
Political power is morally justified and infused with the mandate of legitimacy only if its exercise serves the interests and protects the rights of those subject to that power. Authoritarian governments have no moral authority. What they have instead is raw force — armed police, soldiers, spies, and border guards who compel obedience through violence and fear.
Some political philosophers argue that it’s impossible to justify the inequalities in coercive power inherent in political authority. It’s just too dangerous. But this radical view, which denies that political authority can ever be legitimate, obscures more than it clarifies. When everything government does is classified as an abuse of power, it’s easy to lose track of the abuses that seriously threaten our liberty and prosperity. Few people think anarchy is an enviable state.
Most of us believe that political power can be justified as long as it leaves us all better off than we’d be without it. And that demands an elaborate structure of institutions devoted to assigning, diffusing, limiting, channeling, and constraining that authority so that it protects rather than undermines life, liberty, and the pursuit of happiness. This is literally the American idea, and its success, embodied in the United States Constitution, led to the spread of the best form of political organization in human history: “liberal democracy.”
That phrase serves as shorthand for the collection of institutions known to render dangerous political authority friendly to human freedom and well-being. A charter of basic rights, the separation of powers, free and fair elections, representative legislative bodies, the rule of law, an independent judiciary, a free and independent press, and a professional nonpartisan civil service work together to make political authority something that can be legitimately exercised. They’re “legitimacy-enabling” institutions.
At some point, attacks on the rule of law invite disobedience
Whether or not Trump was legitimately elected, his presidency thus far has been a nonstop assault on America’s legitimacy-enabling institutions. You can bracket the question of Russian influence entirely and still find Trump up to his bronzed wattle in financial conflicts of interest, nepotism, and naked aggression against every attempt to subject him to the rule of law. It was always going to turn out this way.
Trump’s basic tactic — and it’s really his only tactic — is to viciously attack the perceived legitimacy of any person or institution standing in his way while aggressively stimulating the public’s authority-identification gland through charismatic bravado and self-aggrandizing lies. Trump really will say anything — that you’re a bastard imposter, secretly Canadian, guilty of disqualifying crimes, low-energy, little, lying, crooked; that he’s 12-feet tall, the smartest human ever tested, worth a zillion dollars, doesn’t need sleep — whatever it takes. And because he’s a master of authoritative self-presentation, gullible people are inclined to believe him. It is a cretinous, bullying, dead-simple strategy that Trump deployed with remorseless (if sometimes ham-fisted) cunning all the way to the White House.
But once you’re inside the White House, it’s a recipe for mayhem. It’s just impossible to govern the world’s oldest, most powerful liberal-democratic state by running down the legitimacy of anyone who ever says anything you don’t like. Trump’s basic mode of operation practically guarantees the liberal-democratic norms and rules that make a president’s vast political authority legitimate will be constantly violated.
In the hands of a president, Trump’s one political trick becomes a wrecking ball aimed at the foundations of American freedom. The stability of the American constitutional order requires that each branch of the government accord some measure of respect and deference to the others. If that division of power breaks down, the rule of law corrodes and the moral basis of the government’s authority to govern breaks down, too.
So when Trump attacks the legitimacy of the judiciary, he attacks the system of delicately balanced and constrained power that gives him authority. The exercise is repeated when he attacks the independent media — going far beyond complaints of unfair coverage to stocking the White House briefing room with reporters from bogus right-wing news sites, or asserting that the “failing” major news organizations reporting on his efforts to stop the Russia investigation are serving up “fake news.”
When he fires his own FBI director to evade inquiry into his administration’s possible malfeasance, describing Comey as a “nut job,” he undermines the legitimacy of the executive branch’s internal oversight mechanisms, which are critical to ensuring that presidents are held accountable to the law. With every blow to the legitimacy of the institutions that protect Americans from the abuse of unconstrained power, Trump weakens his own claim to authority — and, in turn, weakens the duties of citizens, soldiers, and bureaucrats to behave as if he has any.
This has far-reaching practical implications for those Americans who are most directly subject to the president's authority — for White House staff, for the military officers, for Department of Justice officials, and for agents of the FBI, CIA, and Secret Service, among others. There’s a reason government officials take an oath of loyalty to the Constitution and not to the office of the president or its inhabitant. The oath is a reminder that each and every one of these people is a small check on power.
When political leaders with an already dubious claim to power actively abuse it, the freedom of those down the chain of command to ignore their orders can turn into a positive duty to disobey orders. If Congressional Republicans continue to fail in their constitutional oversight duties, colluding with the Trump administration’s attempts to foil inquiries into its corruption (or worse), it may fall to members of executive branch agencies privy to incriminating information to put it into the hand of the press. They might thereby force congressional oversight by inflaming the public’s sense of scandal. Fidelity to their constitutional oaths might even make it imperative to actively oppose the administration from within.
But isn’t it dangerous to allow bureaucrats to unilaterally decide that a president is no longer legitimate, and that their duties to the office of the presidency no longer entail obedience to Donald Trump? Yes, it’s dangerous. And let’s not be naïve. Partisans always call their opponents’ legitimacy in question. Politics is always more than a little shady. Governmental stability is so incredibly important that we ought to be willing to tolerate a fair bit of degeneracy in the system for the sake of civil peace.
A healthy political culture isn’t brittle, and good institutions have built-in mechanisms for dealing with some level of corruption and abuse of power. If the system can handle it, we ought to try to ride out low-grade illegitimacy using the established procedures. But when an outbreak of despotic venality threatens the long-run integrity of the institutions our lives depend upon, some public servants may find themselves forced to make critical, risky, personal judgments about the legitimacy of the president’s authority.
Ultimately, our freedom and safety may depend on a handful of government officials’ personal integrity and commitment to the Constitution and to their compatriots. Conscience has authority, too.
Will Wilkinson, a Vox columnist, is the vice president for policy at the Niskanen Center.
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