Slow-Motion Coup d'Etat

By Austin Sarat  OPINION CONTRIBUTOR The abrupt dismissal of FBI Director James Comey late Tuesday is the latest move in President Donald Trump's coup d'etat against the rule of law and constitutional democracy in the United States. When we hear the phrase "coup d'etat," we generally think of a sudden, decisive overthrow of an existing government. While such an effort is not beyond Trump, his ongoing effort is an example of what journalist Ole Dammegard has called a coup d'etat in "slow motion." Trump's coup unfolds gradually, through an intermittent series of attacks on the basic values of the rule of law, the most important of which is that no person, no matter how powerful, is above the law. In this conception, power is always accountable to law. Trump's aggressive moves come unpredictably, interrupting seemingly reassuring periods of normal politics and policy debates. He pushes against the norms and boundaries of our constitutional system, then seems to retreat or desist, only to push and probe again to find its weak points and vulnerabilities. In his criticisms of "so-called" judges, in his efforts to call into question the legitimacy of judicial rulings which block his dubious executive actions, in his dismissals of Preet Bharara, former U.S. attorney in Manhattan; Sally Yates, former acting attorney general; and now Comey, Trump has shown that he will tolerate no threats to his power and no efforts that might uncover its illegitimacy. And despite the premature reassurances of some commentators about the resilience of our constitutional system in the face of Trump's authoritarian tendencies, the slow-motion coup continues. There are, I think, three basic elements of the unfolding coup d'etat: First, the assault on language and meaning. Trump thinks he can say anything and then insist that his words do not mean what they clearly say. His language should be taken "seriously not literally," in the words of journalist Salena Zito. As such, Trump could sign off on the Justice Department letter recommending that Comey be fired – a letter that flatly contradicted what Trump has said throughout the fall of 2016. The letter criticized Comey for disclosing the discovery of additional Hillary Clinton emails, 11 days out from the election and called it "a textbook example of what federal prosecutors and agents are taught not to do." But Trump praised Comey for doing exactly that back in October. "It took guts for Director Comey to make the move that he made in light of the kind of opposition he had where they're trying to protect her from criminal prosecution," he said on October 31. "You know that. It took a lot of guts." He added, "I was not his fan, but I'll tell you what: What he did, he brought back his reputation. He brought it back." This is just the latest example of Trump's "words don't mean what they say" attitude toward language. Yet the rule of law depends precisely on the belief that words do mean what they say. In a constitutional democracy, public officials are bound by the words of the constitution, statutes and regulations. If we lose faith in the power of language to convey meaning, we lose faith in law itself. Second, the assault on, but also the crafty use of, the media to change the public narrative. Much has been made of the president's claim that the media is the "enemy of the people." Less has been made of Trump's cagey use of the media. Firing Comey yesterday all but obliterated the attention given to Sally Yates's damaging testimony before Congress about the Russian connections of former National Security Advisor Michael Flynn. The slow-motion coup unfolds as Trump both tries to intimidate the press and also prey on its vulnerabilities, its eagerness for the latest, attention-grabbing outrage. And third, Trump values loyalty much more than legality. Bharara, Yates and Comey all ran afoul of that maxim. Each showed themselves to have a fierce devotion to the rule of law and to the ideals of independence and impartiality on which it depends. It is now time to stand up to the unfolding coup. But the real work of doing so falls not to Trump's opponents, but to his allies, to Republicans in Congress. They must insist that words have meanings that can and must be taken seriously by looking beyond the flimsy pretext offered for the firing of Comey. They must not be distracted from the task of following up on Yates' testimony this week on Russian involvement in the 2016 election. Most of all, by doing both of those things, they will show that even in Trump's America, legality is still much more important than loyalty. Austin Sarat Austin Sarat is associate dean of the faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College. At Amherst he teaches courses on American law and politics including a course called Secrets and Lies. He is the author or editor of more than 90 books. His most recent book is entitled "Gruesome Spectacles: Botched Executions and America’s Death Penalty."