Norms Watch: Tracking Team Trump’s Breaches of Democratic Traditions

We’re launching a regular series tracking President-elect Donald Trump’s adherence, or lack thereof, to democratic norms. These norms are not necessarily legally required, but help make up the fabric that holds together broader democratic values, such as accountability and the rule of law. Our aim is to provide a digestible breakdown of when and how Trump administration policy and actions diverge from custom, practice, and precedent in politics and law. We’re tracking the news, academia, and keeping our Twitter feeds refreshed. Think we’re missing something? Let us know on Twitter.

Here’s what we’ve found for the last seven days.

Thursday, January, 12

Tillerson’s Traveling Press Corps. Trump’s nominee for Secretary of State Rex Tillerson stated in his Senate confirmation hearing on Thursday that he will not commit to a traveling press corps while overseas despite the long-standing practice, reports the Washington Post. The Post’s Glenn Kessler Tweeted that this was a “disturbing statement.”

Giuliani as Trump’s “trusted friend” in cyber security. Trump announced on Thursday that former Mayor Rudy Giuliani will serve as a “trusted friend” to cyber security efforts. While it’s still unclear what his exact title will be, Guiliani will be coordinating meetings between senior corporate executives with Trump to discuss challenges in cyber security.

The position has generated debate on his qualifications, an “absurd choice” according to Trevor Timm at the Guardian. Michael D. Shear at the New York Times wrote that the vague cybersecurity position could add “some Trump administration luster to his private security business,” adding that Giuliani’s past ventures in the realm of national and international security were less than a success. Tech experts on Twitter were highly skeptical of the pick.

 

Wednesday, January 11th

Family Matters: Refusal to Divest. As he announced at his press conference on Wednesday, Trump will relinquish control of his business operations to a trust run by his sons and associates, and will not fully divest his own assets. Trump’s decision defies American policy norms to prevent any conflicts of interest, as over the past forty years, all presidents have either sold off their businesses or handed them off to an independent or blind trustee.

Yet Trump and his lawyer, Sheri Dillon, have defended against allegations of Constitutional violations, stating that agents of foreign nations staying at his Washington, DC, hotel do not violate the Constitution’s Emoluments Clause on the grounds that the law prohibits political officers from receiving gifts from foreign governments, and would not apply to business transactions such as renting hotel rooms to foreign governments. Dillon stated that because Trump will be donating all hotel profits made from payments by foreign governments to the United States Treasury, it will be “the American people who will profit.” As part of the plan, the Trump Organization will not enter into any foreign deals over the course of his administration. Trump and his team have also maintained his exemption as President from federal conflict of interest law, 18 U.S. Code § 202.

Ethics experts believe his plan falls short, reports NBC. Harvard Law Professor Laurence Tribe this week remarked that the plan made Trump “a living, walking, talking, tweeting violation” of the Emoluments Clause. In a December letter to Sen. Tom Carpenter (D-Del.), US Office of Government Ethics Director Walter M. Schaub, Jr. advised against turning the company over to Trump’s children, but wrote that while “every president in modern times has adopted OGE’s recommended approach, OGE has no power to require adherence to this tradition.”  

Democrats in Congress have been strategizing on legal challenges, considering that although the Ethics in Government Act exempts the President, such an exemption does not apply to the STOCK Act and possibly other laws. On Monday before Trump’s announcement, Sen. Elizabeth Warren (D-Mass.) and thirty other House and Senate Democrats planned to introduce new legislation attempting to force Trump to divest assets which posed conflicts of interest.

Infomercial, or Press Conference? In one of many bizarre aspects of Trump’s Wednesday morning press conference, a group of his supporters and staff served as his personal cheering section, hooting and applauding to his remarks, Reuters reported. One of Trump’s supporters even looked over a journalist’s shoulder asking if he planned to publish the notes on his notepad, according to the Financial Times. Trump also displayed thick manila folders and stacks of documents that supposedly detailed his business plans, but he barred journalists from examining them. The presence of the paid staffers and props gave the appearance of an infomercial rather than a press conference, writes Slate’s Jamelle Bouie.

The War on the Media: CNN, Buzzfeed and “FAKE NEWS”

Following the release of the unsubstantiated Trump Dossier on Tuesday night, the President-elect has opened another front in his war on the media against Buzzfeed, who first published the full dossier online, and CNN, who first broke the story. During the Wednesday press conference, Trump refused to take a question from CNN’s Jim Acosta, responding “Your organization is terrible. I’m not going to give you a question. You are fake news.” Snubbing news outlets because of unflattering coverage, Trump is breaking the norms of presidential engagement with the media, writes Michael M. Grynbaum.

In a Twitter dispute Thursday night, incoming White House press secretary Sean Spicer stated that Acosta should apologize to Trump and his colleagues, tweeting that Acosta’s behavior was “rude, inappropriate, and disrespectful.” Acosta responded that Spicer had made an unfortunate statement, and referenced that Spicer had threatened to expel him from the conference.

While members of Congress reacted differently on Thursday, Trump’s continued attacks on media outlets are unacceptable behaviors and risk eroding American democracy, Amazon founder and Washington Post owner Jeff Bezos remarked of Trump’s treatment of the press.

 

Tuesday, January 10th

Civil-Military Relations: The Mattis Waiver and a Skipped Hearing. Enforcing the longstanding policy of civilian leadership over the Pentagon, federal law requires a seven-year waiting period before an officer relieved from active duty can be eligible for Secretary of Defense. The National Security Act of 1947 established a ten year-waiting period, later reduced to a seven-year grace period by the Defense Authorization Act for Fiscal Year 2008.  Congress has only made one exception to the law in history, for former Army Chief of Staff, Gen. George C. Marshall in 1950.  In order to confirm Trump’s candidate for Defense Secretary, Gen. James Mattis, who retired from the Marine Corps in 2013, both the House and Senate must enact a new law or waiver.

Praise for Mattis has come alongside words of caution to guard the American principle of civil-military balance. Loosening of the law could possibly limit the controls and checks on military power within the US government, just “another bending of American norms in what has already been a season of exceptions” writes Mattathias Schwartz.

Following Mattis’ hearing with the Senate Armed Services Committee on Thursday, the Senate easily passed the waiver 81-17. Yet the Trump team oddly barred Mattis from testifying at his scheduled hearing later on Thursday before the House Armed Services Committee (HASC), in a move that POLITICO reported has prompted House Democrats to threaten to put up a fight over. Even the Republican Chairman of the HASC, Mac Thornberry (Texas) expressed it was a “mistake” to cancel the hearing when “major principles of government” were at stake in the exception. In the end. the House committee narrowly passed the waiver 34-28, breaking along party lines. The House expects to hold a full vote on the waiver on on Jan. 13.

 

Monday, January 9th

Family Matters, Part I: The Kushner Appointment. On Monday, Trump appointed his son-in-law Jared Kushner as senior adviser in the White House, raising questions from ethics experts as to whether the role would violate federal anti-nepotism laws. Whether or not Kushner is ultimately cleared under law, Trump is challenging legal norms and democratic principles against nepotism, an appointment characteristic of the policies of dictatorship regimes writes Jon Schwartz.

The Federal Anti-Nepotism Statute, 5 U.S. Code § 3110, states that a public official may not appoint a relative to a position in the agency in which the official is serving. While the law establishes that the President is a public official and a son-in-law is included as a relative, the interpretation of “agency” as including the White House or the Executive Office of the President could be debated based on the reading of a circuit court case in 1993, reported Ailsa Chang at NPR in November.

Twitter Wars

Trump’s penchant for using Twitter to level all manner of comebacks and attacks against his critics falls in the category of norm violations that Daniel Drezner characterizes as Trump’s “unpresidented” actions for the President-elect. Trump’s barrage of Tweets on Jan. 9 against Meryl Streep following her speech at the Golden Globes on Sunday has added attention to his tweeting practices, which includes critiques of his Twitter use from John Kerry, Madeleine Albright, and Jeb Bush over the last few days. A poll conducted by Quinnipiac University this week reported that 64% of American voters said Trump should delete his account.

 

Saturday, January 7th

More Money, More Problems? Bypassing the Office of Government Ethics. In a letter released on Jan. 7 by Senate Minority Leader Charles Schumer (D-NY.), Office of Government Ethics (OGE) Director Walter M. Schaub, Jr. wrote on Jan. 6 that the Trump team’s planned schedule of Cabinet appointee nomination hearings before requisite ethics reviews were complete “left nominees with potentially unknown or unresolved ethics issues,” the first such scenario he was aware of in the OGE’s forty-year history. According to Schaub, the policy norm in the vast majority of cases has been not even announce nominees without going through the vetting process first, let alone proceed with hearings.

As required by the Ethics in Government Act of 1978, all Presidentially-appointed, Senate-confirmed positions must submit financial disclosures and written ethics agreements to address any possible conflict of interest to the OGE. Exceptions have been granted, however, such as President George W. Bush’s nominee for Education Secretary Rod Paige, whose hearing was eight days before the OGE received the necessary forms in 2001. Yet as Paige’s estimated holdings were reported as less than $1 million, his required disclosures may not have been as complex as those within Trump’s cabinet, with an estimated combined wealth of  $4.5 billion to $11 billion, pegged by the Boston Globe as up to thirty times greater value than President Bush’s cabinet and four times greater than President Obama’s.

Under pressure, the Trump team on Tuesday delayed the hearing for Education Secretary Betsy De Voss (whose wealth is valued between $1.25 to $5 billion) and Commerce Secretary Wilbur Ross (estimated at $2.5 billion). While earlier in the week paperwork was still in question for Homeland Security pick John Kelly and Housing and Urban Development nominee Ben Carson, the OGE released both Kelly’s and Carson’s financial disclosure forms in advance of their hearings.

 

Friday, January 6th

In Denial: Attribution of Russia’s cyber attacks. Trump’s continued attacks on the U.S. Intelligence Community and repeated denials of attribution to Russia for hacks on the DNC, reinforced by his Jan. 6 statement, break from years of efforts from the public and private sector to improve attribution of cyberattacks, writes Kristen Eichensehr. Following the release of the unsubstantiated Trump Dossier, Trump acknowledged Russia’s involvement for the first time on Wednesday morning.

First in Line: Calls for Investigation of Media Leaks

Trump’s tweet on Jan. 6 was “astonishing as a matter of separation of powers, institutional function, and historical precedent,” writes Andy Wright. If Trump were to use a Congressional investigation of the classified leak to settle scores with Obama political appointees, this would reflect an unprecedented departure from the policy norm to ensure comity across successive administrations.

Image: Spencer Platt, Getty Images 

About the Author(s)

Katerina Wright

Former NYU Law Center for Human Rights and Global Justice Student Human Rights Scholar with Just Security