It’s been another dizzying few days in Washington, starting with yet another border controversy, as President Donald Trump threatened to bus unauthorized immigrants to sanctuary cities, and ending with the release of Special Counsel Robert Mueller’s report, which turned out to be far more damning than advertised by Trump’s attorney general.
These two very different stories have more in common than meets the eye. In each case, there’s a central tension between the president and aides who refuse to execute orders from him that they believe are illegal or foolish. Mueller’s report is packed with incidents in which White House staff not only didn’t do things Trump said, but never had any intention of doing them. In the case of the border, Immigration and Customs Enforcement staff rebuffed Trump’s plan to bus migrants on legal grounds; meanwhile, Homeland Security Secretary Kirstjen Nielsen and Customs and Border Protection Commissioner Kevin McAleenan refused to turn away migrants seeking asylum, concluding that it was illegal. (Nielsen was sacked soon after, while McAleenan is now her acting replacement.)
In essence, executive-branch employees are hearing orders from Trump and responding, I don’t have to listen to you—you’re just the president. On the one hand, the constitutional system depends on the president executing the law and executive-branch employees following his directives; after all, he is the elected representative of the American people, and they are civil servants. On the other hand, so many of Trump’s orders are in fact illegal or dangerous that it’s difficult to fault staffers who don’t want to endanger the country or legally expose themselves by executing them.
The American system of government doesn’t really make any allowances for either situation, presuming both prudent leadership and conscientious respect for the chain of command. The Founders did provide a method for the removal of a runaway president, but there’s not a broad consensus on whether the president is running wild, and there seems to be little appetite in Congress for impeachment. That leaves a situation that is hazardous to the functioning of the government and the country. It is unsustainable, and yet it’s been sustained for more than two years now.
“The president’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the president declined to carry out orders or accede to his requests,” Mueller notes in his report.
Considering the incidents that are detailed, it’s no wonder. Sometimes aides didn’t want to follow orders that would require them to lie—as when Deputy Attorney General Rod Rosenstein refused to say that firing FBI Director James Comey was his idea. At other times, they resisted orders that would violate government guidelines, as when then–Attorney General Jeff Sessions refused to cancel his recusal on Russia-related matters. And in some cases, they refused to do things to protect Trump from his own worst impulses, as when then–Chief of Staff Reince Priebus told the president he’d ask Sessions to resign, but just didn’t do it.
The acme, or the nadir, of noncompliance came from former White House Counsel Don McGahn, who first refused to fire Mueller and then refused to write a letter denying that he had refused to fire Mueller. Told he might be fired, he was defiant: “McGahn dismissed the threat, saying that the optics would be terrible if the President followed through with firing him on that basis.” McGahn was right, and he wasn’t fired then.
McGahn has since left the administration, though. So have Priebus and Sessions. So, too, have Defense Secretary James Mattis, who, according to Bob Woodward’s Fear, once simply decided to ignore an order to launch airstrikes; and the economic adviser Gary Cohn, who, according to Fear, swiped a letter terminating a trade agreement off Trump’s desk to avoid his signing it. In each case, the departed staffers’ decisions seem wiser than Trump’s, and the fact that the president didn’t seem to notice their sabotage doesn’t speak well to his decision making or attention span.
In the long run, Trump has become annoyed with each of these staffers and forced them out or fired them. The problem is that the results remain similar because each new round of staffers reaches the same conclusion about the president’s orders that their predecessors did. Priebus’s successor was John Kelly, who, according to Fear, deemed Trump an “idiot.” Nielsen’s successor, McAleenan, has already refused the asylum order, despite Trump’s reported promise of a pardon if he were put in jail. In some appointees, such as Chief of Staff Mick Mulvaney and Secretary of State Mike Pompeo, Trump has found aides who are more indulgent, but many lower-level bureaucrats remain resistant to orders they believe are illegal.
The rare staffers who have hung around are people such as Stephen Miller, who, not coincidentally, is reportedly the force behind a recent purge of leaders at the Department of Homeland Security. Rather than viewing Trump as a force of dangerous volatility, Miller treats him as a stalking horse for his own hard-line immigration views.
The president has a right to deputies who are willing to carry out his orders and policies. The problem is that he doesn’t have a right to break the law, and these two imperatives are often at odds. Since Trump doesn’t seem to be curtailing his penchant for bad ideas, this is one of the most important challenges for the government, and especially for Congress, to address over at least the next 18 months—and perhaps the next six years. So far, Congress doesn’t seem up to the task. Everyone knows there’s a disaster happening, but no one knows how to fix it.