Susan Hennessey & Benjamin Wittes

Barnes and Noble

The extraordinary authority of the U.S. presidency has no parallel in the democratic world. Today that authority resides in the hands of one man, Donald J. Trump. But rarely if ever has the nature of a president clashed more profoundly with the nature of the office. Unmaking the Presidency tells the story of the confrontation between a person and the institution he almost wholly embodies. As editors of the Lawfare website, Susan Hennessey and Benjamin Wittes have attracted a large audience to their hard-hitting and highly informed commentary on the controversies surrounding the Trump administration. In this book, they situate Trump-era scandals and outrages in the deeper context of the presidency itself. How should we understand the oath of office when it is taken by a man who may not know what it means to preserve, protect, and defend something other than himself?

The steel-gray skies on the morning of January 20, 2017, opened now and then for the occasional drizzle of rain. It was not the worst weather that had afflicted a presidential inauguration. At William Howard Taft’s inauguration, a snowstorm forced the entire ceremony indoors. By contrast, the temperature the day that Donald J. Trump became the forty-fifth President of the United States reached a comparatively balmy 49 degrees. Yet the inaugural parade route, typically filled to capacity with well-wishers, had only sparse crowds, and empty bleachers lined Pennsylvania Avenue. Cameras broadcast the scene around the world as commentators narrated the day’s events in hushed and somber tones more befitting a state funeral than the dawn of a new presidential administration.

The scene on the Capitol dais was undeniably strange—“some weird shit,” as former president George W. Bush reportedly called it as he left the stage when it was all over. It was strange even before the newly inaugurated president began speaking of “American carnage” in his first address in that capacity. As is the custom, the living former U.S. presidents attended the event. Jimmy Carter was there. George H. W. Bush was too ill to attend at the time, but the younger Bush and his wife, Laura, represented the family. Trump had vanquished Bush’s other son, Jeb, eleven months prior in the early Republican primaries. And he had savaged George W. Bush rhetorically at various points. It was no secret that neither the elder nor the younger Bush had voted for Trump in the end, even though Trump was the standard-bearer for their party. Most eyes, however, rested on a different family of Trump foes: former secretary of state Hillary Clinton, attending with her husband, Bill, in her capacity as the former First Lady.

Ten weeks earlier, Trump had defeated Hillary Clinton in a stunning upset that reverberated around the globe. The 2016 campaign was without question the nastiest in modern American history. Trump had hurled nightly invective against his opponent, whom he called “Crooked Hillary.” Stadium crowds at his rallies—and at the Republican National Convention—had chanted “Lock her up!” In one especially low moment before a debate—after Trump held a press conference with women who earlier had accused Bill Clinton of sexual misconduct—the two candidates could not even bring themselves to shake hands onstage. In the run-up to the inauguration, some observers had speculated that the Clintons might not attend at all, but would break with tradition out of a sense of injury or hostility or mortification—or perhaps some combination of the three.

But Bill Clinton came. And Hillary Clinton came. She wore her trademark pantsuit in suffragette white. She said on Twitter that she attended in order to “honor our democracy and its enduring values.” But her presence loomed over the day, a physical reminder that Trump the candidate and Trump the president were, at the end of the day, the same man.

The inauguration prayers seemed to be as much a rebuke of Trump as a benediction. The Reverend Samuel Rodriguez, an Evangelical minister, selected the Sermon on the Mount, reading the Beatitudes one by one.

“God blesses those who are poor,” he prayed before a self-professed billionaire.

“God blesses those who are humble,” before the notorious braggart.

As Rodriguez ticked through the list of favored attributes—those who are merciful, clean of heart, peacemakers—each stood in sharper contrast to Trump than the one before.

The clock counted down to the key moment, shortly before noon, when Donald Trump stood before Chief Justice John Roberts. Trump’s wife, Melania, held two Bibles, on which he placed his left hand; one was from Trump’s childhood; the other was the Bible that Abraham Lincoln used to take his oath of office in 1861. And then Trump raised his right hand and, repeating after Roberts, swore the presidential oath of office.

A momentary silence hung in the air. No lightning bolt struck. The ground did not open. The passage of power in the United States of America had taken place as quietly as ever. Yet in that moment an earthquake of sorts did occur. Because although the United States may have had more tragically misguided executives at its helm, never before had it had as president a man more obviously misplaced in the office. The mismatch reverberated across the country with the very words of the oath itself. While for millions of Trump’s supporters the moment was one of triumph, for a great many others a sense of dread pervaded the air that morning. This dread had little to do with politics or policy programs; it was not the normal apprehension one might have at the swearing-in of a politician one opposes. Even many people who had cast their ballots for Trump shared in a collective recognition that the man swearing this oath was simply not the sort of man who was supposed to be President of the United States. That mismatch and the challenge it poses to the office Trump assumed that day are the subjects of this book.

This mismatch is fundamentally a question of character. At its core, to a far greater degree than Americans commonly imagine, the office of the presidency depends on a measure of civic virtue. We don’t mean civic virtue in the lofty or nostalgic sense of expecting our elected leaders to be scholar-statesmen who can theorize a system of government as easily as they can lead one, nor do we mean virtue in the sense of personal righteousness and purity. Americans have long since given up the expectation that the country’s leaders will be on a par with its founders, even as the founders’ own luster has tarnished over time. The presidency has had its share of rogues and villains and incompetents.

That said, a certain common understanding of the presidency has prevailed over more than two centuries, and this understanding—call it the traditional presidency—carries with it certain expectations. It does not expect presidents to be paragons of virtue, but it does expect them to espouse shared values and to at least pose as role models. It expects presidents to speak of service and putting others before self. It expects presidents to, at a minimum, pay lip service to following the law and embracing an ethos of civic duty. And it pervasively depends on presidents thinking that they enforce and comply with rules in good faith.

By contrast, it was resoundingly clear on January 20, 2017, that Donald Trump’s life and candidacy were an ongoing rejection of civic virtue, even if we define the term loosely. From the earliest days of his campaign, he declared war on the traditional presidency’s expectations of behavior. He was flagrant in his personal immorality, boasting of marital infidelity and belittling political opponents with lewd insults. He had constructed his entire professional identity around gold-plated excess and luxury and the branding of self. As a candidate, he remained unabashed in his greed and personal ambition; even his namesake charitable foundation was revealed to be merely a shell for self-dealing. He bragged that finding ways to avoid paying taxes made him “smart.” The overriding message of Trump’s life and of his campaign was that kindness is weakness, manners are for wimps, and the public interest is for suckers. He never spoke of the presidential office other than as an extension of himself.

He never spoke of the presidential office other than as an extension of himself.

In America in 2016, that turned out to be a winning message. The reasons why have been treated in depth elsewhere. It was a function of political polarization domestically, of myriad forces driving the appeal of authoritarian populists globally, of the dramatic loss of confidence in political elites, and of a media ecosystem in which voters can increasingly choose their own realities. It was a function, no doubt, of the resurgence of race as a salient political identity for many white voters. And, critically for present purposes, it was a function of political parties’ loss of control over their own nominating processes. We will leave to others the question of how to assess Trump’s appeal and the social conditions that allow him to flourish. The relevant fact for now is that the appeal was broad enough for Trump to win 306 electoral votes and thus acquire the privilege of taking the oath of office that day.

And so a man who quite proudly rejected personal and public virtue now occupied an office designed by people who valued nothing higher. George Washington had said that “virtue or morality is a necessary spring of popular government.” John Adams had insisted that public virtue, “the only foundation of republics,” could not “exist in a nation without private” virtue. Alexander Hamilton had written that “virtue and honor” were the “foundation of confidence” that underpinned “the institution of delegated power.” The contemporary Anglo-Irish philosopher Edmund Burke had famously declared that “society cannot exist unless a controlling power upon will and appetite be placed somewhere, and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things, that men of intemperate minds cannot be free.” Trump had said to hell with all that. And he had gotten elected anyway. It’s true that many presidents seem petty when measured against the founders. But Trump was different even from prior unsavory men who had attained the presidency. They had at least feigned that they cared about these values and expectations. Trump had campaigned against them and won on that basis.

Therein lay the mismatch between Trump and the office he now occupied: he did not even pretend to share a common understanding with his predecessors of its nature and purpose. Trump had his own vision— and it was radically different from what the traditional presidency assumes and demands. At the moment he swore his oath, the mismatch screamed across the city, across the airwaves, and across the centuries. From the very moment of his inauguration he was violating the deepest normative expectations of the traditional presidency.

And the violations continued. The first years of the Trump administration saw such frequent and profound disruptions to widespread expectations of the presidency that the word “norm” became something of a cliché. It became commonplace to observe that many deeply ingrained assumptions about what presidents will and will not do were matters not of law, but of custom. Within a few days of Trump’s inauguration, The Washington Post had launched a podcast entitled Can He Do That?, which announced in its introductory trailer that “Trump is approaching the presidency in ways that nobody has done before, so one of the questions that keeps coming up is: What exactly can the president do?”

But viewing Trump’s presidency merely as a series of breaches doesn’t quite capture its significance or radicalism, and asking “Can he do that?” isn’t exactly the right question either. The answer is almost invariably yes, he can do some or all of “that”—or at least he can try. As we will see, the presidency itself, stripped down to its legal essence, is actually a pretty spare institution. The Constitution doesn’t describe much about what a modern-day president should actually do. It doesn’t address whether he or she should run an interagency policy process through the National Security Council or just shoot from the hip. It doesn’t say whether it’s proper for a president to demand loyalty from her FBI director or to menace her attorney general for recusing himself from an investigation that directly concerns the president. It doesn’t say that he shouldn’t use the presidency to enrich himself or his family. It doesn’t even say that she should tell the truth or, more generally, be a decent or honorable person—except that she should swear an oath of office in which she promises fidelity and care in the execution of the laws. These and countless other expectations of the modern presidency are extra-constitutional grafts onto the Constitution’s bare-bones model—some of them early, some of them surprisingly recent, some of them containing statutory elements, but many of them simply a reflection of developed public expectation over time.

In some ways, therefore, the Trump presidency is a warped throwback to the presidency before countless expectations and bureaucratic structures developed around it. It’s a reminder that honoring those expectations and engaging those bureaucratic structures is ultimately optional— something presidents do because that’s what presidents do, because it worked for their predecessors, and because they, like so many other Americans, have been conditioned never to consider the possibility of anything else. Think of Abraham Lincoln personally firing off telegrams to his generals with an aide or two by his side—where the aides are Steve Bannon and Stephen Miller and the president is not the man who spoke of a “new birth of freedom,” but the one who spoke of “shithole countries.” Trump reminds us that all the accumulated grafts onto the presidency are not essential features of the office. Under certain circumstances, they can be sloughed off at will.

Throughout the presidential transition and in the wake of Trump’s inauguration, many of his supporters—and many nonsupporters as well— imagined that the office would tame him. Trump’s opponents would never embrace his policies, of course, but their fears would prove overblown, the argument went, as this radically unconventional candidate would nevertheless be disciplined by the nature of the office and its strictures. Had this prediction proved correct, we would not have written this book. Presidents can build trust that they may lack upon first entering office. With a different man, it is possible to imagine that the uneasiness felt by those who watched him on the dais that day would have gone away over time.

But the office did not change Trump. Special Counsel Robert Mueller’s final report offers the most authoritative account of his presidency’s disruptions, but those disruptions go well beyond the ones explored by the special counsel. Within a day of his swearing the oath, Trump had lied about basic factual information—such as the size of his inauguration crowd—launching a war against the press. Within a week, he had attacked traditional notions of executive branch process, unleashing a major national security policy initiative without any meaningful consultation with the government agencies that are most qualified to know what the consequences might be. He began an unsettling series of interactions with his law enforcement hierarchy almost immediately, demanding loyalty from the FBI director and then asking him to drop an investigation of his national security adviser. His presidency raised a series of ethical questions about his and his family’s business dealings, about which he has been simultaneously unapologetic and secretive. He adopted a management style as chaotic as it was theatrical, one that quickly had pundits across the political spectrum comparing the White House to a reality television show. He pioneered a new form of presidential communication with the public—the unfiltered Twitter tantrum—in which he lashed out in highly personal terms and often with malicious lies at political foes and at anyone who angered him. And he entered office dogged by the question, unique in American history, of his relationship with the intelligence apparatus of an adversarial foreign power—and then made overt efforts to stymie the investigation of that question.

Any hope that the presidency would discipline Trump, let alone tame him, vaporized quickly. Talk continued of the so-called pivot, but as the weeks and months wore on, it became more ironic than hopeful. There would be no pivot. There was just the man and the role to which he was so obviously unsuited. If the Mueller report does nothing else, it portrays a person wholly lacking in the moral and temperamental and characterological attributes the traditional presidency demands.

Indeed, what became clear was that Trump was attacking the core expectations of the traditional presidency, forged by more than two centuries of history and behavior, yet apparently held in contempt by tens of millions of Americans. These expectations have been historically enforced by a political party structure that has impeded the public’s access at the general election ballot box to figures who don’t minimally conform to its norms. Radical departures from the traditional presidency have not happened in the past because the parties have filtered them out. But the traditional presidency is not just the province of party apparatchiks, media elites, and commentators. It is a creature of mass expectations as well. Large numbers of voters believe in and reinforce its expectations; remember that Clinton received more votes than did Trump.

So as the Trump presidency progressed and his attacks on the norms of the traditional presidency continued, the question shifted from whether the presidency would change Trump to whether and how Trump would change the presidency.

Our object in this book is to take this question seriously. The presidency is not a static institution. As we shall see, it evolved dramatically over the course of the nineteenth and twentieth centuries—evolved in how it is organized, evolved in how it interacts with the public and Congress, evolved even in how it sounds. The presidency is changeable, and in systematically violating the norms of the traditional presidency, Trump is proposing to change it. He is proposing not just that a president can do certain things, but that a president should do these things—that his use of the office is legitimate and proper. He is proposing a reimagination of the office. He campaigned on that proposal, which had resonance for millions of Americans who turned out to hold the strictures of the traditional presidency in low regard. He won the presidency in part by inflaming and exploiting the contempt his supporters felt for the strictures of the office. And he has governed in a fashion consistent with that part of his campaign. Trump’s idea of the presidency has shown sufficient proof of concept that it warrants a systemic examination.

The presidency is changeable, and in systematically violating the norms of the traditional presidency, Trump is proposing to change it.

As a starting point, we take as a given the legal scholar Jack Goldsmith’s blunt assessment of the man:

We have never had a president so ill-informed about the nature of his office, so openly mendacious, so self-destructive, or so brazen in his abusive attacks on the courts, the press, Congress (including members of his own party), and even senior officials within his own administration. Trump is a Frankenstein’s monster of past presidents’ worst attributes: Andrew Jackson’s rage; Millard Fillmore’s bigotry; James Buchanan’s incompetence and spite; Theodore Roosevelt’s self-aggrandizement; Richard Nixon’s paranoia, insecurity, and indifference to law; and Bill Clinton’s lack of self-control and reflexive dishonesty.

But what follows is not in any sense a biography of Trump or a narrative history of his presidency. We do not purport to evaluate his policy proposals or the reasons for his election. Rather, we offer a study of what happens to an institution like the American presidency when a person like this takes the oath of office and comes to embody it. It is an examination—to put it a different way—of what happens to the structure when King Kong climbs the Empire State Building.

Saying that Trump is proposing a revision to the American presidency may sound like it gives him too much credit. This is not, after all, a reflective man; he is not a theoretician. But if he’s no Woodrow Wilson—a man who assumed the presidency having developed a systematic intellectual critique of the U.S. political system and its institutions—Trump is clearly acting intentionally, even if he is not operating according to any plan. He quite consciously poses the question of how he fits into the historical presidency when he mocks what it means to be “presidential.” He full well understands that he is plotting his own course. He takes pride in it. He declared, on Twitter of course, “My use of social media is not Presidential—it’s MODERN DAY PRESIDENTIAL.” At a rally for a Republican congressional candidate named Rick Saccone in Pennsylvania a year into his term in office, Trump told the crowd, “You know . . . how easy it is to be ‘presidential’? But you all would be out of here right now. You’d be so bored. Because I could stand up”—and he assumed an overly stiff demeanor and a deep, sonorous voice, saying—“I’m very presidential. ‘Ladies and gentlemen, thank you for being here tonight. Rick Saccone will be a great, great congressman. He will help me very much. He’s a fine man . . . And to all of the military out there, we respect you very much. Thank you. Thank you.’ And then you go, ‘God bless you, and God bless the United States of America. Thank you very much.’” And he tottered away from the microphone—only to swing back a second later. “See that? Easy. That’s much easier than doing what I have to do . . . If I came [here] like a stiff, you guys wouldn’t be here tonight.” Trump knows he is proposing an alternative. Our aim in this book is to examine the proposal.

Most of all, Trump proposes a presidency that elevates the expressive and personal dimensions of the office over everything else. It is one in which the institutional office and the personality of its occupant are almost entirely merged—merged in their interests, in their impulses, in their finances, and in their public character. In elevating the expressive, vanity-plate dimensions of the office and making it a personal vehicle for the public self-expression of the officeholder, he proposes sublimating nearly all other traditional features of the presidency: its management functions; its expectation of good-faith execution of law; its expectation of ethical conduct, truthfulness, and service. This vision of the presidency thus unsurprisingly produces a genuinely novel set of deployments of the executive’s traditional powers, ones that are profoundly different from those of prior presidents.

Trump’s proposed revision is notably holistic in its nature. Previous presidents have most often sought to transform their office by expanding the edges of their authority; sometimes they succeeded, and sometimes they were pushed back. Consider Abraham Lincoln unilaterally suspending habeas corpus during the Civil War and ultimately deciding to go to Congress for ratification of his decision. Or Harry Truman trying to seize the steel mills and having the Supreme Court block him. Or presidents over time going to war on their own authority and Congress letting it happen. Or Franklin Roosevelt threatening to pack the Supreme Court after it serially ruled against his New Deal program, and the court backing down just in time to head off the plan. Consider the electoral rebuke Republicans suffered after Richard Nixon’s abuses.

Given such history, it is no surprise that when Trump—a man who wore his propensity to abuse power on his sleeve—was elected president, many commentators and critics feared similar efforts. They instinctively knew to treat his enthusiastic remarks in favor of torture and certain war crimes as potentially more than mere words. They knew, without being told, to be concerned about the possibility of intelligence abuses. They worried about what he might do with drones. They worried about which “bad dudes” he might bring to Guantánamo Bay.

But while commentators reflexively looked to the edge cases of presidential power in anticipating Trump’s abuses, the authorities he has actually abused have not lain at the edges. Over the first two years of his presidency, the fights over the major issues of presidential power that have divided Americans since September 11, 2001, largely disappeared from view. For all the fretting during the campaign about Trump’s comments on torture, interrogation policy didn’t change. Neither did detention policy. The authorities of the intelligence agencies to collect and process information did not materially increase under the new administration. And, ironically, the person most vocal in complaining about alleged intelligence abuses was Trump himself, who serially claimed illegality on the part of the intelligence community—from his predecessor’s having allegedly had Trump’s “wires tapped” to his gripes about the “unmasking” of anonymized names in intelligence reports, to his sudden opposition to a key intelligence authority sought by his own administration the very morning Congress finally managed to pass it.

Trump’s abuses, as we shall describe, have almost uniformly occurred in areas where the president’s power is not contested, areas at the very heart of what the Constitution calls “the executive Power.”

Few serious constitutional scholars, after all, doubt the president’s power to “appoint . . . Officers of the United States”—and thus to remove them. Nor is there any serious debate over the president’s power to direct his administration to take actions that are based on bad information and no coherent process. No language in the Constitution requires Trump to follow a process of any kind before setting the executive branch on some course of action or another. The president also has the authority to pardon people: guilty people, people who support him politically, people convicted in an investigation in which he has personal interests. He has the power to strip former officials of security clearances. Even the president’s power to spill highly classified information to foreign adversaries is pretty clearly established. If he wants to receive ambassadors in the Oval Office and divulge secrets to them there, well, they are his secrets to tell.

And, of course, the president’s authority to speak his mind, including on Twitter, is likewise beyond any serious question. Many of the abuses of authority in which Trump has engaged have taken the form of tweets—from maligning people in a fashion that would certainly give rise to defamation suits were Trump not president to announcing new military policies on transgender service members without first establishing an official change in procedure. But the president has the right to say what he wants.

It turns out that one doesn’t need to push the limits of executive power to become an abusive president. One need only personalize and abuse the powers the presidency indisputably holds. The Trump presidency is rethinking the institution not at its edges, but at its core, transforming it from the inside out, as it were.

Trump’s broad attack on the traditional presidency raises an uncomfortable question: Is he right that the presidency needs transforming and is out-of-date? How much, if at all, should people really care about traditions that are not as old or as authoritative as we thought they were? And what happens if the American political system fails to enforce the norms of the traditional presidency over time? What if those norms are elitist claptrap rather than essential guardrails? Perhaps Trump’s throwback presidency should be understood as a refreshing reversion to first principles, not as a dangerous assault on the protective structures we have built around the presidency’s core. Put another way, is there any merit to Trump’s proposed revisions to the office—and if so, what parts of the proposal have value?

The traditional presidency, in our view, requires a defense.

These are not questions on which we will feign neutrality. The traditional presidency, in our view, requires a defense. For all its limitations and flaws, it is a successful institution that has, over a long period of time, well served Americans of many different political views.

As this book goes to press, Congress is considering President Trump’s impeachment and possible removal from office, and less than a year from the time this book is published, Americans will vote on whether to reelect Donald Trump as president. That decision, we hope to persuade the reader, includes the question of whether to ratify and accept the changes Trump proposes to the presidency itself or whether instead to repudiate and discard the vision he has put forward.

The examination of that vision necessarily begins with a close look at Trump’s inauguration and the oath of office he swore that day.

Susan Hennessey and Benjamin Wittes are executive editor and editor in chief of Lawfare. Hennessey is a senior fellow at the Brookings Institution and CNN contributor; she was previously an attorney at the National Security Agency. Wittes is senior fellow at the Brookings Institution and author of Law and the Long War and The Future of Violence, among other books.