This is a non-partisan blog. It has thus, for example, featured endorsements of both Republican and Democratic nominees to the Supreme Court of New Jersey. And, as noted in this blog’s post about the 2016 election, the blog has criticized both Republican and Democratic officials.
Election Day is November 3, two weeks from today. But voting has begun in New Jersey and many other states. As is often the case when an incumbent President runs for re-election, voters are in large part conducting a referendum on Donald Trump. Does his track record since his inauguration in 2017 justify another term?
Since this is a legal blog, we begin with Trump’s relationship to the judiciary. That subject must start with his judicial appointments. Outsourcing judicial nominations to the Federalist Society, Trump has appointed to the Supreme Court of the United States two Justices who espouse the doctrines of “originalism” and “textualism.” A third Supreme Court nomination of a judge with similar views is currently pending before the Senate. Those doctrines often, though not always, lead to results palatable to political conservatives instead of facilitating the objective consideration of each case on its merits.
Trump’s nominations to lower courts also give pause. Nine of his nominees were rated “not qualified” by the American Bar Association, more than any other President, Democrat or Republican. That includes several Circuit Court nominees.
A number of other nominees, though sufficiently credentialed, were selected almost solely for what appears to be their ideological rigidity. Nominees with as little as seven years experience as attorneys were tapped for Circuit or District Court seats. One nominee for a District Court judgeship did not even know what a motion in limine is. That is not to say that every Trump judicial nominee is an ideologue. But the pattern of appointments is troubling.
It is difficult to resist the conclusion that Trump seeks to diminish the judicial branch, which he has unjustifiably attacked in so many different ways. He demeaned as a “so-called judge” a District Judge, appointed by President George W. Bush, who ruled against Trump’s original, ill-conceived Muslim travel ban. He railed against another District Judge, who was handling litigation involving fraud claims against Trump University, due to the judge’s Mexican heritage. And, of course, Trump famously berated what he called “Obama judges,” leading to a resounding reproof by Chief Justice Roberts, who found it necessary to say that there are no “Obama judges or Trump judges, Bush judges or Clinton judges.” Instead, he said, the United States has “an extraordinary group of judges doing their level best to do equal right to those appearing before them.”
Trump has even sunk to trying to undermine judicial processes in cases involving his friends or appointees. He assailed the District Judge who had sentenced Paul Manafort, Trump’s former campaign manager, after Manafort had pled guilty to conspiracy to obstruct justice. When that same judge was due to sentence Roger Stone, a Trump confidant found guilty of charges arising from the Mueller investigation of Russian collusion with the Trump campaign in the 2016 election, Trump assailed her once again (having previously also attacked the forewoman of the jury that convicted Stone). Most recently, Trump’s Attorney General, William Barr, has attempted to interfere with the judicial process surrounding Michael Flynn, Trump’s first appointee as head of the Department of Homeland Security, after Flynn pled guilty not just once but twice to criminal charges.
Trump’s disdain for the judicial branch is mirrored by, and perhaps arises out of, his dangerously unconstitutional views of the powers of his own executive branch. He appears to regard himself as Emperor rather than President, claiming “absolute power.” Trump has said that “Article II says I can do whatever I want,” “When somebody is president of the United States, the authority is total,” and “the federal government has absolute power…. As to whether or not I’ll use that power– we’ll see … I have an absolute right.”
Trump lacks even a basic understanding of the federal system established by the United States Constitution. He has repeatedly sought to “override” decisions of state officials about re-opening their economies in the face of the COVID-19 pandemic or facilitating voting by mail, decisions within states’ purview, over which he has no authority.
Trump’s view that he has “absolute power” and needs no one else also doubtless has informed his selections of Cabinet members, a group that has turned out to be among the least competent and most corrupt in United States history. His appointment of Barr as Attorney General stands out. Barr has acted as Trump’s personal lawyer and protector instead of as Attorney General of the United States. He deliberately and blatantly misrepresented the Mueller report, at a time when the full report itself was not yet available to the public, in an outrageous act of pure political spin. Barr threatened states that acted protectively regarding COVID-19 in ways that Trump did not like, again in violation of our constitutional federalism. He ordered the use of chemicals to disperse peaceful protesters so that Trump could hold up a Bible as a political prop in front of a church. Barr also participated in Trump’s effort to whitewash Michael Flynn, discussed above.
Unfortunately, Barr has plenty of company in the Cabinet member hall of shame. Scott Pruitt, Trump’s choice for head of the Environmental Protection Agency, Ryan Zinke, Trump’s Secretary of the Interior, Tom Price, Secretary of Health and Human Services, are among the officials who had to resign after allegations of self-dealing or misuse of taxpayer money surfaced. Commerce Secretary Wilbur Ross lied so egregiously about including a citizenship question on the 2020 United States Census that an otherwise largely Trump-friendly Supreme Court rendered an an astonishing decision against the administration on that issue. Education Secretary Betsy DeVos, HUD Secretary Ben Carson, and others had no credentials (other than, once again, their extreme ideology) and no achievements, other than trying to sabotage the missions of their respective departments.
Trump had promised that, to compensate for his own lack of political experience, he would appoint “the best people” to his Cabinet. The results speak for themselves. They also speak volumes about Trump’s qualities as a judge of personnel. Rex Tillerson, the former Exxon CEO whom Trump named Secretary of State, turned out (according to Trump, after he later forced Tillerson out) to be “dumb as a rock.” ‘Trump tarred General James Mattis, Trump’s first Defense Secretary, as “the world’s most overrated general” after Mattis said that Trump was trying to divide the American people instead of uniting them, and Trump forced him out. The truth is that any appointee who had a whiff of competence, or presumed to think for himself or herself, has had no place in the Trump administration.
In keeping with his view that his Presidency is all about what is good for him, Trump has blatantly violated ethical principles, such as by failing to divest himself completely of his business interests. He has enriched himself through self-dealing payments to his hotels, resorts, and golf clubs by personnel in his government, by the politically connected, and by those who would like to be politically connected. He has made secret hush money payoffs to women with whom he had sexual relationships, such as Stormy Daniels and Karen McDougal. He has refused to reveal his tax returns, unlike every other President or candidate for the Presidency for decades. He also attempted to undermine the investigation of Russian collusion with his 2016 campaign. And, perhaps most egregiously, he attempted to use a foreign leader, the President of Ukraine, to investigate Joe Biden, then a candidate for the Democratic nomination for President, for which Trump was justifiably impeached by the House of Representatives.
To protect himself and others in his administration, Trump has purged Inspectors General who were investigating wrongdoing in his administration, including by Secretary of State Mike Pompeo. Trump has attacked the intelligence agencies of the United States, which concluded that Russia interfered in his favor in the 2016 election. Instead, he has credulously accepted the statement of Russia’s dictator, Vladimir Putin, that no such thing occurred. Trump has also used litigation to delay the day of reckoning regarding his tax returns and other matters.
Free and fair elections are a hallmark of our political system. Desperate to avoid a loss in the upcoming election, Trump has done whatever he can to sabotage it. After first suggesting that the election be postponed due to the COVID-19 pandemic, which got no traction even from otherwise compliant Republicans, Trump then tried to undermine the Postal Service so that mailed ballots might not be delivered in time to be counted, or at all. Trump himself votes by mail in Florida, but he has mounted a noisy, ongoing campaign about voting by mail, especially in states that will likely oppose him and in “swing states.” He has also refused to say that he will accept the will of the voters, instead claiming that if he does not win, it will be solely because “the election is rigged.” Trump even urged his supporters to vote by mail and then “go vote” in person, in violation of the law.
Trump’s warped substantive policies during his tenure also must be remembered. He has repeatedly endorsed racism, anti-Semitism, and other bigotry. Trump famously asserted that there were “good people on both sides” at the 2017 Charlottesville “Unite the Right” rally that was populated by neo-Nazis and other right-wing extremists, who chanted “Jews will not replace us.” He has elevated Confederate monuments into a part of “our history,” as though everyone in the United States venerates Confederate traitors to the Union and the institution of slavery that was the foundation of the Confederacy. He has wrongly blamed immigrants, legal and otherwise, for the ills of our society.
Trump defends as “patriots” vigilantes who shoot civil rights protesters while attacking protesters themselves as thugs and anarchists. Heavily armed men protesting measures to protect Michigan against COVID-19 he called “very good people” who “are angry” and urged “See them, talk to them, make a deal!,” while Black and white protesters of police killings of Black people he has labeled as evil.
Trump has espoused “law and order.” But “law and order” apparently does not extend to those who planned to kidnap Michigan Governor Whitmer. Trump has not seen fit to condemn them. Instead, he has attacked Whitmer, the intended victim, whom he had earlier insulted as “that woman from Michigan,” one of his countless assaults on women. Similarly, before a huge nationwide debate audience, he refused to say anything negative about the white supremacist Proud Boys, instead ominously urging them to “stand back and stand by.” That invitation to street violence later is unconscionable. And the man who called himself a “very stable genius” claimed ignorance of QAnon, even after the moderator of his recent town hall explained QAnon’s dangerous and groundless beliefs to him, rather than repudiating QAnon.
The “law and order” dichotomy is just one of many ways in which, as General Mattis observed, Trump has sought to divide the nation. He has repeatedly denigrated “Democrat cities,” though cities governed by both parties have had their difficulties. He has claimed that COVID-19 statistics are wonderful “if you take the blue states out,” an assertion is utterly false as well as bitterly divisive. Trump simply does not want to be President of all of the people, just those who blindly support him.
Though foreign policy has received relatively little attention in this campaign, the Trump foreign policy has been almost uniformly disastrous. He has attacked our allies, such as those in NATO, and undermined alliances, treaties, and other multilateral arrangements that have secured the safety and the economy of the United States for decades. Instead, he has cozied up to dictators such as Putin and North Korea’s Kim Jong Un. Trump’s obeisance to Putin has been so complete that he failed to raise with Putin the issue of Russia paying bounties for murdering American military personnel in Afghanistan, of which there was credible intelligence. Trump has said that he “fell in love” with Kim Jong Un, who has outmaneuvered Trump completely in their interactions. No one except Trump believes his assertion that there is “no longer a nuclear threat” from North Korea. Trump’s “America First” policy has turned out to be “America alone.”
Perhaps the ultimate irony is how little Trump, who has touted his experience as a businessman, knows about how the economy works. He has sought to increase the use of coal, an effort that failed because the market sees that other fuels, such as natural gas, are less expensive and cleaner. He has tried to intimidate private companies into taking actions he desires, as though he could rule, as dictators do, by decree. And his view that “trade wars are good and easy to win” has been an abysmal blunder. His unthinking, willy-nilly imposition of tariffs on foreign products was, unsurprisingly, met with tariffs on United States goods. The tariff war hurt United States exporters, such as farmers, as well as United States companies who import things from a global supply chain, and United States consumers, to whom tariffs are ultimately passed on.
Trump inherited from the previous administration an economy that had recovered from the worst blow since the 1920’s-1930’s, the Great Recession. The recovery that followed the Great Recession was the longest in United States history. Trump’s pro-.1% tax policies and pro-pollution environmental policies left the economy too weak to survive the COVID-19 pandemic when it hit. In contrast, the prior administration saw the economy continue to thrive even as another potential pandemic, which was able to be contained, hit the nation.
Trump has continually attempted to overturn the Affordable Care Act, which provided health insurance to millions of previously uninsured Americans. His administration is fighting in court to terminate the ACA. For four years, Trump has promised “something great” to replace the ACA. But he has never produced any such thing. Instead, his goal, as in other areas such as climate change, is simply to destroy, not to build.
Finally, Trump’s handling of the COVID-19 pandemic is disqualifying without more. Leaders are especially called upon to lead during crises. This should have been no exception. But Trump has preferred to live in a fantasy world in which the virus would simply “disappear.”
At first, he used the term “hoax” regarding the virus. Then he said that there were only a few cases and that there would soon be none. Then he claimed that when warmer weather came, the virus would disappear. Eventually, he started to assert that if deaths came in under 100,000, and when that number was exceeded, 200,000, he would have succeeded. We now have lost 220,000 souls, and many more have been hospitalized and had their health affected. Yet Trump claims that the virus “affects virtually nobody.”
Trump points to his “ban” on travel from China as having saved the day. But thousands of people were still allowed in from China even under that policy. In any event, touting that as showing the success of his COVID-19 policy is like a baseball pitcher who gives up 20 runs (or 220,000 runs, to match the death toll to date) in the first inning, patting himself on the back because he got strike one on the first batter. The final score, and the overall conduct of the game, is what matters. The result of Trump’s policies are even more bitter given that the previous administration left Trump a “pandemic playbook” that Trump discarded.
Trump’s mishandling of COVID-19 would be disqualifying even if it were merely negligent, or if he somehow misunderstood the import of the disease. But it is worse. Trump told Bob Woodward, on tape, that he knew how dangerous the virus was. He concealed that from the public, instead engaging only in happy talk, to try to buoy the stock market and ensure his own re-election. Real leaders tell their countries the truth in times of crisis, like Churchill during World War II (“I have nothing to offer but blood, toil, tears, and sweat.”), Roosevelt during the Great Depression (“I see one-third of a nation ill-housed, ill-clad, ill-nourished.”), and even George W. Bush after September 11 (“Terrorist attacks can shake the foundations of our biggest buildings, but they cannot touch the foundation of America.”). To justify his actions, Trump cynically claimed that he did not want to panic Americans about the virus. Churchill, Roosevelt, and Bush knew far better how their people would react to crisis.
All this does not even take into account Trump’s outrageous lying, his deranged tweeting, and the many other un-Presidential ways that he has conducted himself. It is impossible to catalog them all, and it is unnecessary to do so. Instead of sound, steady governance, he has made television, Twitter, golf, self-enrichment, and revenge the polestars of his time in office. Enough is enough.
Joe Biden, Trump’s Democratic opponent, deserves everyone’s vote. He has taken the COVID-19 pandemic seriously, and he will take a science-based approach to the virus. His policies are largely centrist. He understands how to be President and how to unite the nation and be President of all of the people. Biden will appoint officials of quality, not lackeys or hacks. His slogan of “build back better” is exactly what the nation needs after four years of Trumpian divisiveness and chaos. We can only hope that the people speak wisely in this election.
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