Opinion | What Really Saved the Republic From Trump? - The New York Times - 0 views
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an informal and unofficial set of institutional norms upheld by federal prosecutors, military officers and state elections officials. You might call these values our “unwritten constitution.”
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anti-Muslim travel ban, the courts have been too unwilling to look beyond form to ferret out unconstitutional motive.
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More generally, Mr. Trump has tended to move fast, while the courts are slow, and to operate by threat, which the courts cannot adjudicate.
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Madison intended Congress to be the primary check on the president. Unfortunately, that design has a key flaw (as Madison himself realized). The flaw is vulnerability to party politics. It turns out that if a majority of members of at least one body of Congress exhibits a higher loyalty to its party than to Congress, Congress will not function as a reliable check on a president of that same party. This was what happened with Mr. Trump and the Republican-controlled Senate.
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Instead, the president’s worst impulses were neutralized by three pillars of the unwritten constitution. The first is the customary separation between the president and federal criminal prosecution
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That is why, throughout this fall, even as Mr. Trump urged his appointees in the Justice Department to openly announce a criminal investigation into the Biden family, they did not comply. None of Mr. Trump’s appointees was willing to openly investigate Joe Biden or his family members, let alone issue an indictment or civil complaint.
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Imagine if in response to the provocations of Mr. Trump’s lawyer Rudolph Giuliani, a U.S. attorney had charged Mr. Biden with criminal fraud. Even if Mr. Biden ultimately prevailed in court, publicly fighting such charges during an election would be a political and logistical nightmare. The unwritten constitution blocked this line of attack on the electoral process.
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Over the past four years, six of Mr. Trump’s close associates have been convicted and seven were indicted, including his adviser Stephen Bannon, his campaign chairman Paul Manafort and his lawyer Michael Cohen. Such prosecutions would be unimaginable in a dictatorship.
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Mr. Trump’s plan had the written law on its side. Neither the Constitution nor any congressional statute would have prevented the president from directly ordering active duty military to suppress the protests. The Constitution makes the president the commander in chief of the armed forces and the Insurrection Act of 1807 allows the president to use the military or National Guard to suppress civil disorder, providing a broad exception to the general rule barring domestic use of the military.