Cohen plea should focus attention on the failure of the US constitutional system

Michael Cohen’s guilty plea has raised questions about the legitimacy of Trump’s presidency. REUTERS/Jonathan Ernst

Cohen plea should focus attention on the failure of the US constitutional system

Michael Cohen’s guilty plea on Aug. 21 has some observers wondering whether Donald Trump’s presidency can survive.

As part of his plea, Cohen stated under oath that Trump directed him to make illegal hush payments intended to influence the 2016 election by hiding stories that could have been damaging to then-candidate Trump. Trump’s victory was assured by a narrow margin in three states. Fewer than 80,000 votes in Michigan, Wisconsin and Pennsylvania made the difference.

Granted, such a close election surely turned on numerous factors. However, the scheme Cohen pleaded guilty to may well have been one. Cohen’s statement suggests Trump is an unindicted co-conspirator in a federal crime aimed at affecting the outcome of the election.

If Cohen is telling the truth – something which should not be taken for granted – this news raises questions about the legitimacy of Trump’s presidency. But Cohen’s guilty plea ought to do more than that. It should also spark broader discussion about a dramatic remedy I believe is necessary: rewriting the Constitution.

Scholars disagree as to whether the constitutional system will weather Trump’s presidency. Some believe the system is holding up so far and will come out all right. As a scholar of presidential power, my opinion is that the danger is being downplayed. There is no guarantee that the rule of law and limits on presidential power will endure against a president with clear authoritarian ambitions. By authoritarian, I mean a leader who rejects constitutional, or liberal, democracy.

Other scholars recognize that Trump’s presidency presents an existential threat to constitutional democracy in the United States, and suggest shoring up the existing system.

In my view, even that perspective is too narrow. Here’s why:

The Constitution is failing

If the U.S. had a functioning constitutional democracy, Congress would immediately take action to determine whether Cohen is telling the truth. It would also take steps to sort out other questions that go to Trump’s legitimacy, including serious allegations about his campaign’s possible coordination and conspiracy with Russian agents who the U.S. intelligence community says attacked the election in an effort to help Trump win.

But there is no sign that Congress is doing or will do any of this.

If Cohen is telling the truth – again, an open question – that means Trump will face no meaningful consequences for criminal actions he helped direct – at least as long as Republicans control Congress. This calls into question not just Trump’s legitimacy as president but the viability and indeed the legitimacy of our current constitutional system. A system that is incapable of dealing with the situation we currently face is a failed system.

When it comes to presidential power, the famous checks and balances woven into the U.S. constitutional system – some based on formal legal rules, others on unwritten norms – depend most centrally on Congress. When one party controls both the executive and legislative branches of government, members of Congress can only do their job by rising above partisan interests. But Republicans in Congress have been unable to do this, even though some in their ranks, like Sens. Jeff Flake and Bob Corker, clearly have serious concerns about Trump. Most Republican members of Congress either defend the president’s attacks on the rule of law or play the role of passive observers, waiting to see how far Trump will go in his efforts to turn the federal justice system into his personal plaything.

Over the past year and a half, many have wondered whether congressional Republicans will eventually stand up to protect the rule of law and the independence of the justice system. In my view, it is time to recognize that we are witnessing the failure of a constitutional system and the ability of members of Congress to check the executive branch. It is time to recognize the need for fundamental change that can only be achieved through a new Constitution.

The problem did not begin with Donald Trump, but his disregard for the rules and norms of constitutional democracy has highlighted the system’s flaws. This is not a partisan concern. I wrote about the failure of congressional Democrats to enforce limits on Obama’s presidency, and it is quite possible that Democrats would be unwilling to rein in an authoritarian president from their own party if one came to power.

Using the existing amendment process is not enough because it can easily be controlled by elites, such as elected officials and other political insiders. Todd Eisenstadt, Carl LeVan and Tofigh Maboudi’s research shows that it is essential to have broad public participation and input in drafting a Constitution if the goal is to strengthen democracy – and that this kind of participation can be more important even than the ultimate content of the Constitution itself. Americans should demand and create a new process for drafting a new Constitution — as the framers of the current Constitution did when they abandoned the Articles of Confederation in 1787, but (unlike the framers) with citizen input from the start.

I provide more specifics of what I have in mind in a paper I’ve written that goes into more detail about the problem we face, different scholarly views, and my proposed solution of drafting a new Constitution. The new Constitution would not throw out all pieces of the existing system, but would make changes aimed at strengthening liberal democracy. Some of the key changes would include:

  • abolishing the Electoral College

  • assuring the independence of the federal justice system, including the Department of Justice

  • dramatically limiting or ending the role of private money in politics

  • changing equal state voting rights in the Senate

  • addressing the problem of partisan gerrymandering in the House

  • protecting a fundamental right to vote against voter suppression efforts

  • requiring financial transparency for presidents and presidential candidates, and prohibiting presidential profit-making from office and

  • replacing the current impeachment and removal process with a new process better equipped to remove dangerous and/or unfit presidents from office, while also guarding against partisan abuse of the process.

The solution I propose is radical, and not without significant risk of unintended consequences. Any new constitutional convention could open a Pandora’s box, allowing dangerous new ideas out that undermine democracy. Even if the project to create a new Constitution succeeds as designed, no document can guarantee the survival of liberal democracy.

But the danger of inaction is also great. If Cohen is telling the truth about Trump’s involvement in criminal activity intended to influence the outcome of the 2016 election, Trump will have incentives to take the same approach in 2020 – in other words, to break the law in an effort to win.

This is dangerous, to say the least. It is time to recognize that the current system is simply not up to the task, and time to think about how we can create a new system to strengthen liberal democracy and the rule of law.

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