Norms Watch: Tracking the Erosion of Democratic Traditions (Jan. 13-20)

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Last week, we launched 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.

Especially in light of events this past week, we have broadened our analysis. We now include responsive norm violations in which American institutions — like the news media, the military or Congress — deviate from traditional norms in reaction to the current political climate. We do not attempt to place a value judgment on those deviations. Some might be viewed as necessary correctives, or bad precedents. We leave that for readers to decide.

The destruction of democratic norms was discussed during Barack Obama’s last interview as president, which he did with Pod Save America. The podcast’s host, former Obama speechwriter Jon Favreau, remarked that it was fair to say Republicans had eroded certain democratic norms over the last eight years, including blocking Judge Merrick Garland’s confirmation process and the debt ceiling crisis. Favreau asked Obama: “Do you think that progressives should follow suit to win more? Or do you think that it’s more important to be the institutionalists?”

Obama responded: “Look, I think that it doesn’t help the progressive cause to undermine norms that help support a progressive society. So, in that sense, maybe we’re a little bit disadvantaged relative to [Senate Majority Leader] Mitch McConnell. But I don’t know how we’re served with more judicial vacancies. I don’t know how well served we are with us trying to suppress voters the way they try to suppress voters in places like North Carolina. That doesn’t sound like a good solution. But in terms of cooperation, in terms of how does a Democratic Congress work with President Trump, my suggestion has been: You stand your ground, and where there are areas of agreement, you just make sure you’re negotiating tough and negotiating well.”

Moving ahead, Just Security intends to capture the more complex and interactive ecosystem of norms violations happening today. Our primary 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, but we’ll also be on the lookout for when norms are violated as a response to Trump. We’re tracking the news, and keeping our Twitter feeds refreshed. Think we’re missing something? Let us know on Twitter

Thursday, January 19th

New administration begins with unusually high number of unfilled positions

On Thursday, the New York Times reported that the Trump team was “still scrambling to fill key administration posts.” Trump has chosen only 29 of his 660 executive department appointments, “a pace far slower than recent predecessors.” Delayed by ethics paperwork and Democratic opposition, Trump’s team may be the slowest administration to fill its cabinet since George H. W. Bush in 1989, according to a POLITICO analysis of the confirmation process of the last five administrations. In preparation for the transition, the Trump administration has assembled “beachhead” teams of temporary political appointees to begin carrying out Trump’s agenda until his cabinet members receive Senate confirmation. The teams are assuming “outsize importance” because so few of Trump’s cabinet members will be confirmed when he takes office.

Trump’s Traveling Press Corps

Matt Viser, the deputy Washington Bureau Chief for the Boston Globe, reported via Twitter on Thursday that Trump’s motorcade had been traveling without a press van.  In November, when Trump first began abandoning the precedent of traveling with a press pool, CNN’s Brian Stelter wrote that this “behavior breaks with well-established norms governing a president’s relationship with the press corps.” In response to Trump’s conduct, Olivier Knox, Chief Washington Correspondent for Yahoo News, appealed to Americans to recognize the significance of this breach, emphasizing that the protective pool uniquely serves to chronicle history, and to keep the public informed, especially in the event of a crisis.

The absence of the traveling press van, however, could be an aberration. In November, Trump spokeswoman Hope Hicks stated that Trump would have a traditional protective White House press pool by the time he assumed the office, according to POLITICO.

Wednesday, January 18th

Rick Perry’s “Learning Curve”

According to the New York Times, Trump’s pick for Secretary of Department of Energy Rick Perry did not realize he would be the steward of the nation’s nuclear arsenal at the time he accepted the nomination. The article reported that although Perry’s supporters granted he has no experience in the realm of nuclear weapons policy, his supporters argue he has significant experience managing nuclear waste, a challenge under the purview of the department. During his hearing on Thursday morning, Perry expressed regret for his past statements to abolish the agency.

 

Tuesday, January 17th

Trump and his Telephone

Despite advisers’ efforts to limit his use of—or even take away—his personal cell phone, Trump continues to answer his personal phone directly, reported the Washington Post on Tuesday. The article continued that Sen. Bob Corker (R-Tenn.), chairman of the Foreign Relations Committee, said he never needs to go through an intermediary aid to reach Trump or schedule a meeting in advance, and that although Corker’s calls register as “No Caller ID,” Trump always answers them. According to the Huffington Post, Corker told reporters that Trump and his team were an “amazingly accessible group of people,” adding, “I don’t think there’s likely been a White House like this maybe ever, but certainly in modern history.” Trump’s deviation from the practice of having an aide or assistant filter or manage conversations may favor democracy and accessibility in government. It depends, in part, on who has his phone number, and whether such calls are properly recorded.

On Thursday, the New York Times reported that Trump had turned in his personal cell phone for a “secure, encrypted device approved by the Secret Service with a new number that few people possess.”

Keeping STOCK of Tom Price’s Trading

Reported by CNN on Tuesday, just one week after Representative Tom Price (R-GA), Trump’s nominee for Health and Human Services Secretary, invested between $1,001 to $15,000 in stock of the medical device company Zimmer Biomet, Price introduced a measure that delayed regulation, which could have been adverse to the company. Following CNN’s report, TIME later that day published that Price had invested in six additional pharmaceutical companies prior to passing legislation that favored the companies’ interests. These most recent allegations build on claims from the Wall Street Journal report in December finding that over the last four years Price has traded over $300,000 in shares of health companies, while sponsoring and promoting legislation that could have potentially impacted them.

An aide to Price responded that the Zimmer Biomet stock had been purchased by a broker, without Price’s knowledge. Sen. Charles Schumer (D-NY) told CNN that if Price had known about the purchase, “it could very well be a violation of the law.” The Stop Trading on Congressional Knowledge (STOCK) Act, which bars members of Congress from using nonpublic information to earn financial gains, is now in the spotlight. Sen. Kirsten Gillibrand (D-N.Y.) has called for an SEC investigation into Price’s activities. Three Democratic senators wrote to Sen. Lamar Alexander (R-Tenn.), chair of the Senate Committee on Health, Education, Labor, and Pensions, to postpone Price’s hearings until the ethics issues had been fully resolved. The hearing continued as scheduled on Wednesday, though Schumer told CNN that he believed there was a “very good chance” Price would not be confirmed.

 

Trump’s Response: Retraction Request

The day after CNN’s story on Price broke, Erik Wemple of the Washington Post expressed concerns about the Trump team’s surprise request for a retraction from CNN, which Wemple said did nothing more than confirm the basic facts of the Price story. As Wemple reflected, “[a]s President-elect Donald Trump and his people lay waste to various media-government norms and standards, they now appear intent on defanging the retraction request.”

Responsive Norm: Office of Government Ethics Steps Up

According to CNN, “shortly after” Price repeated that he had engaged in no wrongdoing and referenced his submitted Office of Government Ethics (OGE) financial disclosure forms, the OGE posted several tweets about the office’s mission, though not mentioning Price, his holdings, or the hearing. As discussed below regarding Trump’s L.L. Bean endorsement on Twitter, critics have increasingly questioned whether the OGE’s practices are going against its role as an independent ethics watchdog.

Monday, January 16th

Blacklisting and Grudges in the GOP

David Nakamura at the Washington Post reported that members of the Republican foreign policy establishment who had signed one of the two “Never Trump” letters had been blacklisted, and were not being offered positions within the new administration. One former Bush official said, “It’s not just that we’re frozen out. . . . I was told they said there was an enemies list.” In November, Eliot Cohen, a former State Department counselor serving during the Bush administration, wrote an editorial describing the “seething anger” within the Trump administration against Trump opponents of the Republican party.

Saturday, January 14th

A White House Press Corps With No White House?

As first reported by Esquire on Saturday, the Trump team is considering a proposal to evict the White House Press corps from the West Wing, where it has been based for decades, relocating journalists next-door to the Old Executive Office Building or across Lafayette Square in the White House Conference Center. If implemented, the move “would uproot decades of established protocol,” according to the New York Times. Incoming White House press secretary Sean Spicer has characterized the choice as a matter of space capacity in order to meet a high level of demand from reporters to attend the press conferences, also emphasizing that the decision was not final, but still being considered.

Responsive Norm: Politicization of the Press, and Objectivity in Journalism

The norms of engagement between the press and the incoming Trump administration have been under immense pressure. According to the New York Times, Buzzfeed’s publication of the Trump Russia Dossier on Jan. 10  was “sure to accelerate a roiling debate about the role and credibility of the traditional media in today’s frenetic, polarized information age.” And sure enough, it did. Buzzfeed’s move generated critique and debate from the Hill, the Washington Post, and the Guardian.

In August, the New York Times Jim Rutenberg reflected on how the tradition of objectivity in journalism will likely erode during the Trump administration, conceding that “balance” in journalism “has been on vacation” since Trump’s presidential bid. He explained:

If you’re a working journalist and you believe that Donald J. Trump is a demagogue playing to the nation’s worst racist and nationalistic tendencies, that he cozies up to anti-American dictators and that he would be dangerous with control of the United States nuclear codes, how the heck are you supposed to cover him?

Because if you believe all of those things, you have to throw out the textbook American journalism has been using for the better part of the past half-century, if not longer, and approach it in a way you’ve never approached anything in your career. If you view a Trump presidency as something that’s potentially dangerous, then your reporting is going to reflect that. You would move closer than you’ve ever been to being oppositional. That’s uncomfortable and uncharted territory for every mainstream, nonopinion journalist I’ve ever known, and by normal standards, untenable.

In the Columbia Journalism Review in July, David Mindich observed a “change from the existing practice of steadfast detachment,” writing that Trump’s comments have “fallen outside acceptable societal norms, and critical journalists are not alone in speaking up.” Founding director of the Center for Journalism Ethics at the University of Wisconsin Stephen J. A. Ward wrote in December that journalists are facing a time of “soul-searching.” In his view, journalists can either counter Trump’s distorted statements as a “bombastic, counter-balancing opposition press,” or they can see “themselves, delusionally, as only neutral chroniclers” of history and fact. He encourages the practice of “democratically engaged journalism,” falling somewhere between the two options, dismissing the neutral chroniclers role as “an outdated notion of objectivity formulated in the early 1900s for a different social context.”

Friday, January 13th

Flynn’s Phone Calls With Russia

As reported by David Ignatius of the Washington Post on Friday, Trump’s national security adviser Retired Lt. Gen. Michael T. Flynn had several calls with Russian Ambassador Sergey Kislyak the day the Obama administration announced sanctions against Russia in response to its hacking of the Democratic National Committee. Reuters subsequently reported that Flynn had five calls with Kislyak that day. The Trump team refuted the number and date of the calls, and said the two men did not discuss the sanctions.  

Joshua Keating at Slate considered the issue historically, ultimately finding that while meetings with foreign officials and the president-elect are a regular feature of presidential transitions, negotiations that “undermine a sitting president’s foreign policy are not unprecedented, but remain highly controversial.” Commentary from the New Republic remarked that the Trump team had “long ago abandoned the norm that the president-elect shouldn’t contradict the outgoing one.” Trump’s phone calls have demonstrated another break with policy practice. CNN reported in December that the Trump team had not consulted with the State Department prior to calls it has with foreign heads of state or government (More on Trump’s calls from Michael Fuchs for Just Security here.)

Twitter Wars: John Lewis

During an interview on Friday with NBC’s Chuck Todd for Sunday’s “Meet the Press,” Rep. John Lewis (D-Georgia) stated he did not consider a Trump a “legitimate president,” because he believed Russia aided Trump’s presidential campaign and helped destroy Hillary Clinton’s. He said he would not attend Trump’s inauguration.  Trump responded to Lewis on Twitter:

The NAACP demanded an apology from Trump, and Democrats in Congress on Saturday defended Lewis. Sen. Ben Sasse (R-Neb.) posted on Twitter that Lewis’ ”talk” changed the world.’ Conservative commentator Bill Kristol remarked that Trump treated Russian President Vladimir Putin better than John Lewis, a civil rights icon. Former RNC chair Michael Steele also issued a rebuke against the series of tweets.

The New York Times reported some critics, notably former Obama senior adviser David Axelrod, have expressed disagreement with Lewis’ statement on Trump’s legitimacy. According to the Boston Globe, Sen. Elizabeth Warren avoided questions as to whether or not Trump was a legitimate president, stating that Lewis had “earned the right to raise questions about legitimacy.” In an editorial for the Hill, conservative pundit Joseph R. Murray II critiqued Lewis for not just attacking Trump, but “all the men and women who voted for him.” Incoming White House press secretary Sean Spicer called the comments on Trump’s legitimacy “disappointing.” Since the election, questioning Trump’s legitimacy has generated caution from political commentators who say they are making an appeal to respect democratic norms.

Responsive Norm: Testing the Transition of Power

Galvanized by Trump’s attacks on Lewis, at least 62 House Democrats will be boycotting Trump’s inauguration, according to the latest numbers reported by POLITICO. To date, all Senate Democrats will be attending. House Minority Leader Nancy Pelosi (D-Calif.) has confirmed her attendance, stating it was her responsibility to uphold the peaceful transition of power. Hillary Clinton has also, since long ago, announced plans to attend.

Though Sasse took a stand against Trump for his attacks on Lewis, he appealed to him to attend the Inauguration not for Trump, but as a “celebration of peaceful transfer of power.” Speaking to Fox Business Network’s Neil Cavuto, Tom Bevan, the co-founder and publisher of Real Clear Politics, characterized the Democrats boycotting the inauguration as playing a “cynical and dangerous” game. Mike Pence has urged for unity during the Inauguration, encouraging the country to come together as a nation. Meanwhile, incoming White House Press Secretary Sean Spicer announced they were planning to give away the boycotting Democrats’ tickets, adding it was “a shame that these folks don’t want to be part of the peaceful transfer of power.”

Responsive Norm: Democrats Divided on Comeback Strategy

Following Trump’s attacks on Lewis on Twitter, Jonathan Martin of the New York Times reported on Jan. 14 the growing division among Democrats over how to respond to Trump’s behavior. Martin wrote that “Mr. Trump’s willingness to dynamite political norms, whether with his incendiary statements or his disregard for traditions like releasing tax returns or divesting assets, is creating an irresistible temptation for the opposition to veer away from more conventional attacks on issues.” While Democrats believe it is “folly to engage him on his preferred terrain of insults and bombast,” Democrats are finding it harder to focus responses on policy issues. Sen. Michael Bennet (D-CO) told the newspaper, “One of the things that I worry about is that we’ve reached a point in our politics, and frankly in our journalism, as well, where we’ve sort of turned it all into a reality TV show.”

The Ethics of Endorsement

One day after Trump’s tweet encouraging his supporters to “Buy L.L. Bean,” the Office of Government Ethics (OGE) posted a “Refresher on Misuse of Position” to its website, stating the federal rule to prohibit executive branch employees from “endorsing any product, service or company.”

The Hill reported that this was the first Director’s Note from the OGE in nearly two months. Overwhelmed with traffic, the OGE’s website went down that afternoon. The normally “sleepy” website, receiving around 30,000 visitors a year, received 1 million visitors in three days alone, according to PBS. The Hill’s Ben Kamisar reported 19 companies that Trump had tweeted about since his Presidential bid.

The OGE is facing criticism from  Republican members of Congress who are questioning its independence as the federal ethics watchdog, embroiling Director Walter Schaub, Jr. in a public debate. Incoming White House chief of staff Reince Priebus issued a warning to Schaub for what Priebus described as politicization of the post. The day before the “Refresher” was posted, a letter written on Jan. 12 by the House Committee on Oversight and Government Reform requested information about the OGE’s public interactions, stating it had questions “about blurring the line between public relations and official ethics guidance.” The letter concluded by requesting a transcribed interview with the committee as soon as possible and before Jan. 31. Rep. Jason Chaffetz (R-UT), chairman of the House Oversight Committee, has threatened to subpoena Schaub if he fails to attend the interview. According to emails obtained by the Huffington Post, however, while Chaffetz’s office had requested an interview with the OGE in December, Chaffetz missed the earlier meeting.

The OGE is in the process of receiving and reviewing the ethics and financial disclosures of Trump’s nominees. Several candidates forms’ still remained incomplete earlier this week, including billionaire Betsy DeVos, nominee for Secretary of Education. Despite the objections of Democrats, DeVos’ hearing continued as scheduled on Tuesday. Sen. Lamar Alexander (R-Tenn.), head of the Health, Education, Labor and Pensions (HELP) Committee, stated that the committee would not vote on her confirmation until the OGE paperwork was complete. DeVos’ paperwork was signed off by the OGE on Thursday.

Trump: Clinton is “guilty as hell”

Announced on Jan. 12, the Justice Department’s Inspector General is now investigating FBI director James Comey over his conduct of the agency during the last days of the presidential campaign.

The following day, the editorial board of the Wall Street Journal called for Comey’s resignation, writing that his “actions reveal that he is willing to violate Justice Department procedure and standards for his own political purposes.” The editorial continued that Comey “had lost the trust of nearly everyone in Washington, along with every American who believes the FBI must maintain its reputation as a politically impartial federal agency.” Meanwhile, Trump responded to complaints about the FBI by tweeting that Clinton was “guilty as hell,” continuing his “unpresidented” behavior on Twitter.

Security at the Inauguration: Out with the D.C. National Guard, in with the Bikers

Effective at precisely the moment when Trump is sworn in as president at 12:01pm on Jan. 20, Maj. Gen. Errol R. Schwartz, head of the D.C. National Guard and a critical lead in overseeing the inauguration, will be removed from command, reported the Washington Post. Schwartz described the timing as “extremely unusual,” prompting reactions from D.C. Council Chairman Phil Mendelson that it didn’t “make sense to can the general in the middle of an active deployment.” After the story ran, the Trump transition team reversed course and asked Schwartz to stay for a few more days. The general said it was too late, he’d packed his office. He also said he believed the Trump team’s reversal was only the result of the negative press that his departure had generated.

It seems that Trump may have some backup security: Bikers for Trump. The founder of the group, Chris Cox, told Fox News that if needed, “we certainly will form a wall of meat” to protect people attending the inauguration from protesters.  As Trump touted the group’s attendance, a fake photo of bikers heading to Washington, however, ended up swirling in the media.

 

Thursday, January 5th

The Politicization of the  Military?

In an editorial for the Washington Post in July, General Martin E. Dempsey called the participation of retired Marine Gen. John Allen and retired Army Lt. Gen. Mike Flynn in the Democratic and Republican conventions a “mistake.” Generals have a duty to maintain their “apolitical traditions,” he wrote. Dempsey told NPR that military involvement in politics would undermine the public trust. When Trump continued to repudiate the intelligence community findings of Russian interference in the election, however, Dempsey cautiously entered the fray with his Twitter post appearing on Jan. 5:

 

Image: Spencer Platt/Getty 

About the Author(s)

Katerina Wright

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