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Feldman: Take Trump’s threatening tweets to Democrats seriously

Feldman: Take Trump’s threatening tweets to Democrats seriously

In a democracy, powers of oversight and investigation are designed as checks that each party can use on the behavior of the other, Feldman writes
Feldman: Take Trump’s threatening tweets to Democrats seriously
President Donald Trump at a campaign rally in Indiana Nov. 5
Photographer: Doug Mills/New York Times

Looking for the meaning of the midterms?

President Donald Trump has defined it in a tweet, threatening a criminal investigation of Democrats if the House Democratic majority uses its powers to investigate him.

“If the Democrats think they are going to waste Taxpayer Money investigating us at the House level, then we will likewise be forced to consider investigating them for all of the leaks of Classified Information, and much else, at the Senate level. Two can play that game!” Trump wrote on Twitter.

This statement by the president comes close to a total repudiation of the norms of democratic governance.

In a democracy, powers of oversight and investigation are designed as checks that each party can use on the behavior of the other. They are integral to the system.

Oversight and investigation therefore are not a “game,” as Trump says.

They are core features of what keeps democracy from dissolving into corruption.

To be sure, both sides in our two-party democracy have those powers, at least when in control of at least one chamber of the legislature.

In that sense, the Democrats and Republicans have the inherent capacity to check each other. Game theory can be used to analyze almost any two-party political process.

But that is very different from a Republican president, representing one side in the political process, overly threatening to go after the Democrats if and only if they try to investigate him.

That’s an explicit distortion of partisanship in the interests of personal self-preservation.

This threat so significant because the one thing that has definitively changed as a result of the midterms is that the Democrats in the House now have subpoena power to use in investigating Trump.

As usual, Trump has seen through to the one way the election is genuinely going to affect him personally.

And he is taking steps to prevent the Democrats’ investigation power from harming him.

Will the threat work?

Of course, Trump’s tweet is consistent with the philosophy he’s been deploying ever since he threatened to lock Hillary Clinton up in the 2016 presidential debates.

In Trump’s world view, the way to defend yourself is simply to threaten the other side.

The threat has two effects. One, which we’re by now familiar with, is changing the subject.

The more airtime is taken up by Trump’s opponents investigating him, the more airtime he wants to expend on his opponents’ supposed wrongdoings, even if they are completely invented.

In general, Trump has done well with his “change the subject” approach.

It is likely that Republican investigations of Democrats would actually change the subject, at least to some degree.

The other effect of Trump’s threats is one we haven’t yet had to consider seriously: that he would actually succeed in intimidating his opponents so that they soft-pedal investigating him.

Here the specific nature of Trump’s threat becomes significant.

If Democrats aren’t vulnerable to investigations, they shouldn’t be put off by Trump’s stated plan.

But cleverly, Trump’s tweet-threat focused on one area in which essentially everyone who has ever come close to touching classified information is vulnerable: mishandling that information.

The laws governing classified information are fairly draconian - and fairly often disobeyed.

Rep. Adam Schiff, who is expected to become chairman of the House Intelligence Committee, has handled classified information as a member of the committee.

It’s no exaggeration to say that Trump’s tweet is aimed in a significant way at Schiff personally.

Politicians who speak to the news media regularly while also being exposed to classified information do sometimes leak material that’s classified.

Some of those leaks might conceivably constitute genuine threats to national security.

But many leaks that are technical violations of the law in fact enable the news media inform the public of important government policies and actions.

Someone who is investigated in connection with leaking can be expected to have his or her phone records and emails subpoenaed and reviewed.

In the process, lots of other potentially embarrassing information may be revealed.

So for Trump to threaten Democrats with investigation over leaking classified information is essentially for him to threaten to use the investigative the power of the Senate to hack their communications - legally, through partisan Senate subpoena.

And if violations of confidentiality are found by the Senate, they would probably constitute crimes.

That could lead to a referral from the Senate to federal prosecutors.

Prosecutors, in turn, might find it difficult to decline prosecution where there is actual evidence of wrongdoing.

It would look bad for the Department of Justice to say about unlawful leaking, “Everyone does it.”

The upshot is that Trump is really, truly threatening Democrats like Schiff.

They will have to stand up to the threat, and take the risk of retaliation.

If the Democrats back down and curtail their investigations as a result of the threat, they won’t just have given Trump a huge victory.

They will have colluded in the breakdown of our constitutional system of checks and balances.

That would have long-term, seriously negative consequences for democracy itself in the United States.

Noah Feldman is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.

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