Even Under Bad Emperors?

Well, here we are in a new year, 20 days out from the inauguration—far past the safe harbor deadline, long after the states certified election results and the electoral college voted to confirm them (without a single faithless elector), long after the Supreme Court rejected the last major legal challenge to the results, and after federal judges around the country threw out innumerable similar, lesser lawsuits—long after all these things... and still, Trump is plotting to overturn the results of the election. 

Once again, that is to say, the president has confirmed the worst that might have been said of him. The attempts to normalize him, to "both-sides" the issue, to dismiss criticism of Trump as so much partisan hype and hand-wringing, has run up against the final, irrefutable fact of the president's own behavior. 

This happens time and again! Trump makes life difficult for everyone, but perhaps no one suffers more under his reign than his would-be "respectable" defenders—the op-ed writers who say every couple of weeks, "Oh, we doesn't really mean that"—only to have Trump swing around days later and do exactly that.

Remember way back in the start of all this, during Trump's 2016 campaign, when a reporter asked him whether he would create a "Muslim registry" if he were elected? Trump indicated he would, but it wasn't clear he had properly heard or understood the question. 

Many of us, including myself, therefore thought the media coverage of the incident was unfair. Perhaps, we thought... for a brief instant... all of this has been overblown. Maybe he won't really be such a terribly dangerous bigot and Islamophobe after all. 

Then, shortly thereafter, Trump kindly acts to wipe away all doubt. His own campaign issues a press release declaring their intention to impose a "shut-down" on "all Muslims coming into the country." Boy was our face red! But no matter, the normalizers and the excuse-makers kicked into gear once again. They proved inexhaustible then and ever since.

Even once Trump took office and acted within days to impose exactly this policy, telling reporters that his travel ban was indeed the "Muslim ban" he proposed on the campaign trail, gussied up after a conversation with Giuliani to make it look "legal" (because Trump and his team knew damn well that a straightforward and explicit ban on Muslim travelers would not pass Constitutional muster)—even after all of this, the normalizers said his travel restrictions in no way resembled a Muslim Ban. 

And then, the Supreme Court, the president's ultimate excuse-makers, claimed to find no way in which the travel ban could be definitely linked to a discriminatory animus. We don't want to think it could be true, so it isn't. 

Thus it goes time and again. "Oh," we were told, "Trump doesn't want to delay the election!" Then the president inconveniently said in a Tweet that he was considering doing just that. "Oh, Trump will accept the results of the election when it comes down to it." Well, here we are on January 1, 2021, after we have passed all the crucial milestones of the electoral process apart from Congress's final confirmation of the results on January 6. Are you seeing any signs of him doing so? 

Or here's another example: Just a few weeks before the election, you may recall Ross Douthat writing—in a piece that was highly critical of Trump and declared Douthat's intention not to vote for him—that existential fears about the president were nonetheless exaggerated. "The liberals are wrong to see [Trump] as a dictator," Douthat declared. Here, it was implied, was the reasonable middle. We should be anti-Trump, but not hysterically so. We should be able to assess dispassionately his flaws without engaging in hyperbole. 

But I don't think anyone ever said that Trump is a dictator. The point is that he'd like to be, if our Constitution and institutions would permit it. And this is exactly the point I don't think Douthat can any longer deny. Trump has exhausted every possible legal avenue to contest the results of the last vote. The only thing that's left is to subvert the electoral college results—an undemocratic seizure of power—which he has conspired to do, and he has reportedly even had meetings with advisers to discuss extra-legal options like imposing military rule and invoking the "Insurrection Act" without any basis. 

You can't pretend it's normal. You can't "both-sides" it. Trump is the living, breathing embodiment of every "hyperbole" that could ever be uttered against him. There is no exaggerated fear that we won't do his best to live up to. 

Yet, very often, at this point, the normalizers still refuse to back down. They merely retreat from arguing about Trump's intent to arguing his capacity. Well, he can't really overturn the electoral college results at this point, they say. He can't really impose martial law—there's no legal pathway at this point for him to do so. 

But is that really the point, morally speaking? An undemocratic seizure of power is still what it sounds like, regardless of how well or otherwise it is carried out. If incompetence is the only thing saving us from a coup or dictatorial personal rule at this point—that is surely nothing for even the most sanguine normalizer to celebrate. 

All of which raises the question of how we might have avoided this fate—how might we have not normalized Trump? How might we have shown him for what he was, made the evidence plain before all eyes willing to see, that his was an incredibly dangerous character? 

The most recent episode of the "National Security Law" podcast called my attention to a powerful op-ed in the New York Times—written shortly before the holidays—that addresses itself to exactly this question. 

In the piece, former DOJ attorney, Erica Newland, who served under the Trump administration before resigning in disgust in 2018, describes the rationalizations she used to settle her conscience during the brief interval she served under this president. During that time, she informs us, she was among the team responsible for creating that pseudo-"legal" version of the "Muslim Ban" that Trump needed in order for the policy to survive legal review. 

Basically, Newland says, she convinced herself at the time that by normalizing Trump—by forcing his policies into the mould of law in clever ways—she was also defanging him. A Trump policy that could survive a legal challenge was ultimately less dangerous than a Trump policy that couldn't, because the former would at least not amount to a direct subversion of the Constitutional order. While Newland describes in self-lacerating words how she later came to think differently, it is nonetheless a very plausible and sympathetic account of how a reasonable and conscientious person might come to think that they could serve the country better by "staying on the inside" than by becoming a critic from without. 

The thought behind this seems similar to the one that kept General James Mattis in the administration, long after Trump's true personal character had become plain to him. 

If looking for justifications for this worldview in the pages of history (which the famously well-read Mattis may well have done), these individuals could have done worse than to look toward Tacitus's Agricola—the hagiographic account he wrote of the political life of his father-in-law. This short work contains one of the briefest yet most salient justifications of the "do-more-good-on-the-inside" approach I have thus far come across. 

As Tacitus informs us, his father-in-law Agricola was not only a highly successful and respected military commander—he also for this reason soon attracted the envy and suspicion of the emperor Domitian—depicted in Tacitus's hands as a grasping and paranoid autocrat. Once Agricola comes due for a promotion, therefore, Domitian acts to push him into a quiet retirement—first sending proxies to warn Agricola to reject the proffered position, thereby allowing Domitian to "graciously" and with much regret accept his resignation and speed his withdrawal from active political life. 

With this stage of the sabotage complete—in Tacitus's telling at least—Domitian then may well have had Agricola poisoned: in this manner, permanently taking a powerful and popular potential rival out of the running.  

Yet Agricola was no resistance fighter. Tacitus holds it up as a positive trait in his father-in-law's character that, in spite of all this ill-treatment, he did not openly mutiny against the emperor or even actively criticize and oppose him. (Tacitus even reports that on his death bed, Agricola maintained an outward presentation of good cheer so as to absolve the emperor of any justified suspicion of poisoning.) From this, Tacitus concludes that moral courage and political virtue do not always take the form of martyrdom. 

"Let it be clear to those inclined to admire unlawful acts," Tacitus writes (in the Mattingly/Rives translation), "that even under bad emperors men can be great, and that a sense of duty and discretion, if backed by ability and energy, can reach that peak of honour that many have stormed by precipitous parts, winning fame, without serving country, through an ostentatious death." 

This, no doubt, is how the Mattises and Kellys and Newlands of the world make sense of their decision to remain in the administration and refrain from publicly criticizing the president long after the scales had fallen from their own eyes about what sort of person they were dealing with. This is why John Kelly refused to go on record condemning Trump, despite being most likely one of the key sources for the Trump-military-cemetery story (in which the president said before the graves of dead soldiers that they were "losers" who had died for nothing). This is why Newland kept on inventing legal rationales and justifications for policies she knew to have a discriminatory and thereby unlawful intent. 

Tacitus' point after all is that an "ostentatious death"—or firing or forced resignation, as the case may be in present times—serves no one. It may require courage to become a martyr, but it doesn't make the administration committing the martyrdom any wiser, any more restrained. It doesn't mitigate the harm they can still cause to others. This is what Newland claims to have been telling herself. This is what Mattis told himself. (Until both were eventually pushed too far.) They could "do more good on the inside" than they could as just another external critic. 

Newland now views that as the wrong approach, however—and for exactly the reason we have been discussing. This approach normalized Trump. By creating a slightly wiser, slightly more legally sophisticated version of his policies, harm was not mitigated. Instead, harm was papered over, shielded by a convincing-enough disguise—a trick that worked ultimately on the Supreme Court, who allowed Trump's Muslim Ban to stand, after listening to administration lawyers defend it. This is the danger in helping "bad emperors" to show their best possible face to the public—it occludes their real nature and intent. 

Newland's point is that now—in the post-election phase—the mask has been dropped. With no "normal" and sophisticated lawyers left at his command, we are seeing how profound is Trump's hostility and contempt for the democratic process and the rule of law. His efforts to subvert the election have been handed over to the Guilianis and the Powells of the world—dangerous crackpots whose outlandish conspiracy theories failed to convince even dyed-in-the-wool conservative and Trump-appointed federal judges and Supreme Court justices. And precisely because the true nature of his actions has become more plain to anyone willing to see, he has therefore become less competent and less dangerous.

I do believe that there can be good people serving even under bad emperors—Newland and Mattis among them. Tacitus was not wrong about that. But the good people have a way of making the badness of the emperors they serve less visible, and by those means prolonging their reign. This is why Agricola ought to have protested his forced retirement. This is why he should not have put on a grimace of cheer over his bowl of poison. 

This is Newland's warning to all of us now: the normalizing and the excuse-making do not help. They've never helped. Normalizing Trump does not make him more normal. It can only make all of us more inured to the unacceptable.