At a frenetic and freewheeling rally in Macon, Ga., in mid-October, with less than three weeks to go before the election, President Trump turned introspective. He reflected on what sets him apart from every other president in American history: his refusal to be presidential.
“I always said, it’s much easier to be ‘presidential’ than to do what I do. ... I’m more presidential if I wanted to be, but I got to get things done,” he said. “I don’t have enough time. ... I can be more presidential than any president in our history — with the possible exception of Abraham Lincoln when he wore the hat. That was tough to beat.”
What does it mean to be presidential? Article II of the Constitution describes the office in just a handful of paragraphs. To a remarkable extent, the presidency is shaped by unwritten traditions and expectations that historians and political scientists call “norms” — what political scientists Steven Levitsky and Daniel Ziblatt call the “soft guardrails” of American democracy.
Violating presidential norms doesn’t equate to breaking the law. Can Trump steer taxpayer money to his businesses? Can he call for the investigation of his political rivals? Can he fire people in oversight positions and replace them with loyalists? Yes — technically — he can. But should he?
One of the things Trump has forced presidential scholars to realize “is the extent to which shamelessness in a president is really empowering,” says Jack Goldsmith, a former Justice Department official in the George W. Bush administration who teaches at Harvard Law School. The current presidency also reveals “the extent to which the whole system before Trump was built on a basic assumption about a range of reasonableness among presidents, a range of willingness to play within the system, a range of at least a modicum of understanding of political and normative constraints.”
Goldsmith and others argue that Trump’s steamrolling of norms could do lasting damage to both the stature of the presidency and the institutions of democracy if reforms aren’t devised to bolster the fragile tissue of these shared understandings.
And yet, Trump’s transgressions have been a source of his populist power. His delight in breaking norms — and the establishment’s shock at his antics — provides proof to his supporters that he is doing something right. Sean Spicer, the president’s first press secretary, says that Trump’s style has allowed him “to actually get things done.” Spicer cites trade policy and the 2017 tax cut as examples. “You can argue that it’s not the most presidential thing to tweet at Angela Merkel about, you know, the percent of GDP that Germany pays to meet their NATO obligation. But it’s worked. ... There are some things in which his disruptive nature has really moved policy forward,” Spicer says. “And there’s some areas where it’s probably not been so helpful.”
“While some on the Left or even in the media might say that the President has been one to break ‘norms,’ I would argue just the opposite,” White House spokesman Judd Deere wrote in an email. “President Trump has been the person who has returned power to the American people, not the Washington elite, and preserved our history and institutions, while others have tried to tear them down.”
In a sense, the election was a referendum on Trump’s norm-breaking. Now, as Trump shatters yet another norm by refusing to accept the result of the vote count, the office’s structural weakness, one that allows chief executives to act in ways the framers of the Constitution never imagined, has been exposed. There are calls from Congress and from outside government to recast some norms as laws, and to craft other reforms. America must decide what it means to be presidential.
To read about the 20 most important norms that Trump has ignored or undermined, scroll or use the drop-down menu below. Also included: why norms are important, other presidents who’ve broken norms, and whether we can restore norms once they’re broken.
1. Personally profiting from official business
Since Jimmy Carter, most presidents have used blind trusts or other means to separate themselves from active control or ownership of assets to assure the public that they would not make decisions out of financial self-interest. (Barack Obama did not set up a blind trust. His money was in mutual funds, Treasury bills and the like.)
President Trump correctly pointed out that presidents are exempt from conflict-of-interest rules placed on federal officials, so he did not have to distance himself from his businesses. Yet the norm has been for presidents to act as if the rules applied to them. Trump turned over day-to-day management of his empire to his sons but insisted on staying informed and maintaining ownership. He had visited his properties more than 280 times as of late October, according to a Washington Post tally, thus raising their profile and drawing political, business and foreign customers seeking to curry favor with the administration. The Secret Service and other government agencies have paid at least $2.5 million for rooms and other expenses at Trump properties, and his campaign and fundraising committee have paid $5.6 million more in fees for events, according to Post reporting.
“The president not only holding on to his businesses, but very explicitly advancing them while president ... is a whole set of norms that has been kind of thrown out the window,” says Noah Bookbinder, executive director of the nonpartisan Citizens for Responsibility and Ethics in Washington. “The idea that you can’t use government for your own personal financial gain is crucial for people to believe that government is working in their interest.”
2. Not releasing tax returns
The tax-release tradition began after Richard Nixon’s tax scandal in 1973, when he famously declared, “I’m not a crook.” Nixon released several years of returns in 1974, months before resigning amid the separate Watergate scandal. His successor, Gerald Ford, released years of summary tax data, including income, major deductions and taxes paid. Starting with Jimmy Carter, every president has released full tax returns — until President Trump. He has maintained that he can’t release his returns because they are under audit, even though that is not an obstacle to releasing them.
In Trump’s case, tax returns would show if he has personal financial connections to foreign nations, the extent to which he has paid his fair share of taxes and given to charity, and the extent to which he might benefit personally from tax policies he supports, according to Duke law professor Neil S. Siegel in a 2018 piece for the Indiana Law Journal, “Political Norms, Constitutional Conventions, and President Donald Trump.” “These norms and conventions, although not ‘in’ the Constitution, play a pivotal role in sustaining the Constitution,” Siegel wrote.
3. Refusing oversight
This past spring, President Trump fired or removed five inspectors general: the internal watchdogs for the intelligence community, the Defense Department, Health and Human Services, the Transportation Department and the State Department.
In some cases, the dismissals appeared to be retaliation for actions that angered Trump or his allies. When he fired intelligence inspector general Michael Atkinson, Trump mentioned his displeasure with Atkinson’s handling of the whistleblower complaint about the Ukraine phone call that led to Trump’s impeachment. The ouster of Christi Grimm, the acting inspector general for Health and Human Services, came a month after she issued a report finding “severe shortages” of coronavirus testing kits and “widespread shortages” of protective equipment like masks.
The job of inspector general was a post-Watergate reform, created in 1978 across the government as a quasi-independent check on waste, fraud and abuse. Never has a president terminated so many inspectors general in the middle of his term. (Ronald Reagan dismissed holdovers from the previous administration on his first day in office, but rehired several; Barack Obama fired one.)
“President Trump’s spate of inspector general removals this spring is alarming, and every American should be concerned about the state of federal government oversight,” David C. Williams, a former inspector general for six agencies under four presidents, wrote in The Post. “But the problem with Trump’s actions is not simply removing the watchdogs — it’s also the chilling effect left on those who remain and the fact that the president is replacing some of the ousted officials with thinly credentialed political loyalists.”
4. Interfering in Department of Justice investigations
Since at least the 1970s, administrations have generally taken care to insulate the Department of Justice from presidential meddling and limit White House communications about investigative details.
Not the Trump administration. Early on in his term, he tried to browbeat Attorney General Jeff Sessions into reversing his recusal from the Russia investigation. He asked FBI Director James B. Comey not to pursue a case against Michael Flynn, his former national security adviser, according to Comey’s congressional testimony, which Trump denied. He criticized the cases prosecutors built against both Flynn and Roger Stone, Trump’s friend and former informal political adviser. He asked White House counsel Donald McGahn to fire special counsel Robert S. Mueller III, then pressured McGahn to lie about having been asked, according to the Mueller report.
Trump has frequently called for the investigation and prosecution of Hillary Clinton, former president Barack Obama and other members of the previous administration.
I hereby demand, and will do so officially tomorrow, that the Department of Justice look into whether or not the FBI/DOJ infiltrated or surveilled the Trump Campaign for Political Purposes - and if any such demands or requests were made by people within the Obama Administration!— Donald J. Trump (@realDonaldTrump) May 20, 2018
“The norm of not attempting to influence traditional law enforcement functions, either in favor of one’s personal or political friends or against one’s personal political enemies — Trump has utterly departed from that norm,” says David Kris, co-founder of Culper Partners consultants, who served in the Justice Department under Bill Clinton, George W. Bush and Barack Obama. “This is not normal and it is not safe.”
5. Abusing appointment power
President Trump has flouted the constitutional appointments process to fashion a government reliant on acting officials who have not been confirmed by the Senate. He is the first president since before Ronald Reagan to have more acting than confirmed Cabinet secretaries, according to Anne Joseph O’Connell, writing earlier this year in the Columbia Law Review.
Presidents of both parties, including Trump, have found it difficult to get officials confirmed in the face of Senate filibusters or inaction. But partisanship alone can’t explain Trump’s record. Of the top 757 positions requiring confirmation, Trump has not nominated anyone for 133 slots, according to research by The Washington Post and the Partnership for Public Service.
Instead, Trump has stretched federal vacancy rules to delegate authority to unconfirmed loyalists across the government. This allows him to fire officials who displease him without having to go through the hassle of a Senate confirmation. “I sort of like ‘acting,’ ” Trump told reporters in 2019. “It gives me more flexibility.”
But the approach has consequences. In August, the Government Accountability Office found that Chad Wolf, acting secretary of the Department of Homeland Security, and Ken Cuccinelli, the acting DHS deputy, are serving unlawfully in their roles. The Trump administration rejected the finding. In September, a federal judge ordered the removal of William Perry Pendley, who had been effectively serving as acting director of the Bureau of Land Management for more than a year.
“The President cannot shelter unconstitutional ‘temporary’ appointments for the duration of his presidency through a matryoshka doll of delegated authorities,” U.S. District Judge Brian Morris wrote in his order, referring to Russian nesting dolls. Pendley responded by offering reporters the novel logic that he couldn’t be ousted — since he was never formally appointed.
Why Are Norms Important?
The framers of the Constitution had a general idea of the type of people who would be president and how those people would act. The job’s description has been fleshed out over the centuries by the practices of each chief executive and the reaction of the public and the other branches to those practices.
The most important norms reinforce values, such as preventing self-dealing and making decisions less arbitrary, wrote Daphna Renan in a 2018 Harvard Law Review piece. The system has evolved this way for many reasons. In some areas, it may be against the constitutional separation of powers for Congress to legislate a presidential norm. Georgetown law professor Josh Chafetz, who has also written on presidential norms, says that “in many cases, you actually don’t want to solidify things as much as you would by writing them down. You want to leave a little bit of play in the joints.”
“If you try to legislate too much, you can really screw up the necessary speed, agility, adaptability and so forth of government,” says David Kris, a former Justice Department official. “There is [also] danger in too little regulation in the sense that norms are more easily violated perhaps than laws.”
Times of polarization — exactly like today, writes Renan — are when norms are most in peril.
6. Insulting allies while cozying up to authoritarians
To hear President Trump tell it, Canadian Prime Minister Justin Trudeau is “very dishonest.” French President Emmanuel Macron is “foolish” with low approval ratings. A telephone call with then-Australian Prime Minister Malcolm Turnbull was “the worst call by far.” Danish Prime Minister Mette Frederiksen’s rejection of Trump’s idea to buy Greenland was “nasty.” Theresa May made “a mess” with her handling of Brexit when she was Britain’s prime minister. Trump is also the first U.S. president since NATO’s founding to abdicate moral leadership of the treaty organization, and his punitive trade policies have further antagonized allies.
Meanwhile, Trump has shown an affinity for strongmen such as Russia’s Vladimir Putin, China’s Xi Jinping and Brazil’s Jair Bolsonaro. He has spoken glowingly of the “love letters” he received from North Korean leader Kim Jong Un. He called Turkish President Recep Tayyip Erdogan “a tough guy who deserves respect.” He congratulated Philippine President Rodrigo Duterte for the “unbelievable job” he was doing on his country’s drug problem, despite reports of thousands of extrajudicial killings.
A president will need to deal with a variety of world leaders — but there’s always an end goal in mind, says Nancy McEldowney, former director of the State Department’s Foreign Service Institute. “The very last thing you ever do is grant an Oval Office meeting, or a presidential meeting, or a summit-level meeting, which conveys legitimacy,” McEldowney said, referring to Trump’s one-on-ones with Kim, Duterte and others. “He seems to rush to embrace these leaders without getting anything in return.”
7. Coarsening presidential discourse
President Trump has communicated more unfiltered words to the public than any other chief executive — not just through Twitter, but via rambling rally speeches and impromptu jousts with reporters. This stream of presidential consciousness is like “a fireside rant, but one that has no beginning and no end,” Susan Hennessey and Benjamin Wittes write in their book “Unmaking the Presidency.”
Trump’s rhetoric is unprecedented not just in volume, but in character, according to scholars of presidential speech. His name-calling, personal insults and public swearing have almost ceased to shock. He periodically invokes violent imagery, promising protesters that “when the looting starts, the shooting starts,” and praising a congressman for having body-slammed a reporter.
Trump “uses language like a dangerous demagogue and not like a president, and he’s very successful with it,” says Jennifer Mercieca, historian of American political rhetoric at Texas A&M University and author of “Demagogue for President: The Rhetorical Genius of Donald Trump.” “He outrages his base and provokes them on a minute-by-minute, hourly basis. He outrages his opposition. It keeps all of us attentive to his message, and so he’s been able to dominate and control the public sphere.”
8. Politicizing the military
President Trump has trampled the line between politics and the military from the second week of his presidency, when he chose the Pentagon room dedicated to the most highly decorated military heroes as the setting to sign his controversial order barring refugees and blocking travel from seven predominantly Muslim countries. In 2018, his campaign soundtrack blared when he arrived to address troops in Iraq and Germany, using his talks to attack Democrats and autograph Make America Great Again hats for uniformed service members. He regularly refers to “my generals” and “my military.”
Just before the 2018 midterm elections, he deployed thousands of troops to the southern border, and in the past two years, when Congress didn’t appropriate sufficient funds for the border wall, he used the defense budget as a piggy bank, redirecting nearly $10 billion from the Pentagon to pay for the wall. As protests for racial justice broke out across the country, he threatened to deploy active-duty troops to confront demonstrators. After police cleared protesters across from the White House, he led Secretary of Defense Mark T. Esper and Joint Chiefs Chairman Mark A. Milley through Lafayette Square for a photo op. Milley later apologized in a graduation speech: “I should not have been there. My presence in that moment, and in that environment, created the perception of the military involved in domestic politics.”
Trump is not the first president to ensnare the military in politics, but “President Trump has aggravated and accelerated this trend by [breaching] so many of the norms about the way a president will behave towards the American military,” says Kori Schake, director of foreign and defense policy studies at the American Enterprise Institute. “That has potentially really damaging effects for the country, and not just for the relationship between our public and our military, but for the relationship between our military and our foreign policy goals.”
9. Attacking judges
Past presidents have signaled displeasure with court rulings, but they have not challenged the legal system’s legitimacy as Trump has.
Trump reacted angrily to a series of legal setbacks involving his 2017 attempts to impose a travel ban from Muslim countries. On Twitter he called a federal judge in Seattle a “so-called judge” whose ruling “essentially takes law-enforcement away from our country.”
In 2018 he slammed “an Obama judge” for blocking his asylum policy at the Mexico border, prompting Chief Justice John G. Roberts Jr. to issue a rare rebuke: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” Trump quickly replied on Twitter: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”
Delivering the annual Judge Thomas A. Flannery Lecture last year in Washington, U.S. District Judge Paul L. Friedman surveyed the damage of Trump’s verbal attacks on judges: “We are witnessing a chief executive who criticizes virtually every judicial decision that doesn’t go his way and denigrates judges who rule against him, sometimes in very personal terms. He seems to view the courts and the justice system as obstacles to be attacked and undermined, not as a coequal branch to be respected. … This is not normal.”
10. Politicizing diplomacy and foreign policy
All diplomacy carries a whiff of politics — Republican foreign policy is different from Democratic foreign policy — but President Trump has put a uniquely electoral stamp on foreign affairs. In June 2019, Trump asked China’s Xi Jinping to help with his reelection prospects by buying more soybeans and wheat, according to a memoir by former national security adviser John Bolton. (Trump has dismissed Bolton’s recollections as “pure fiction.”)
A year earlier, at a dinner for top donors at Trump’s hotel in Washington, a business executive with interests in Ukraine informed the president that the American ambassador to that country was disloyal. “Get rid of her!” Trump can be heard responding in a video recording released later. The ambassador, Marie Yovanovitch, was perceived as an impediment to powerful actors with interests in Ukraine who later also claimed to be willing to provide dirt on Trump’s potential campaign opponent, Joe Biden. Yovanovitch was removed in April 2019. A few months later, in the infamous phone call with Ukrainian President Volodymyr Zelensky, Trump asked Zelensky for help in gathering information on alleged misdeeds by Biden and Biden’s son Hunter.
This past August, undoubtedly with Trump’s blessing, Secretary of State Mike Pompeo brought foreign duties directly into the political sphere with a speech for the Republican National Convention from Jerusalem, where he was on an official trip. Less than a month before the 2020 presidential election, after urging by Trump, Pompeo said the department would try to release a batch of Hillary Clinton’s State Department emails.
While “every president has their own slant, their own style and their own policy preferences,” says Nancy McEldowney, the State Department veteran, “Trump has politicized not just the content of the policy, but the conduct of the diplomacy, to such an extreme extent.”
Other Presidential Norm-Breakers
Thomas Jefferson: The Constitution requires the president to report to Congress on the state of the union. After George Washington and John Adams delivered oral presentations, Jefferson changed the norm to a written report. Giving a speech, he wrote in 1801, was inconvenient and would interfere with Congress’s ability to respond thoughtfully.
Andrew Johnson: The Founders feared the prospect of a demagogue in the White House and frowned upon the notion of a president making direct appeals to the unruly passions of the people. Johnson broke this norm and used popular rhetoric to reach the masses. His subsequent impeachment in 1868 was partly connected to this breach.
Woodrow Wilson: He restored the original norm — and broke Jefferson’s model — by reporting on the state of the union in speeches to Congress, starting in 1913. Most presidents since have followed his lead. Building on Johnson’s populism and Theodore Roosevelt’s “bully pulpit” view of the presidency, Wilson also used speeches to firmly establish the norm of the so-called rhetorical presidency, where appealing directly to the people is seen as key to the job and a source of modern presidential power.
Franklin D. Roosevelt: Frustrated with the Supreme Court after it knocked down some New Deal legislation, FDR concocted a bill in 1937 to try to add justices to the court. The norm against meddling with the court was so strong that his own Democratic Party in Congress rejected the plan. FDR successfully flouted another norm: that presidents should serve no more than two terms. After FDR’s three reelections, the two-term norm was hardened into the 22nd Amendment to the Constitution, ratified in 1951.
Richard Nixon: He violated norms in ways that were more shocking than illegal. He launched a secret war in Cambodia, ordered wiretapping and tax audits of reporters and other perceived foes, cut corners on his own taxes, and attempted to evade congressional oversight. A raft of post-Watergate reforms reinforced norms of transparency and ethics, and also created new ones: Presidents started voluntarily releasing tax returns, steps were taken to insulate the FBI and the Justice Department from the White House, and internal watchdogs were created — all of which President Trump has challenged.
11. Undermining intelligence agencies
President Trump called the intelligence chiefs who served under Barack Obama “dirty cops” and “sleazebags,” while he has continued to feud with the agencies and his own appointed directors. He bristled at their conclusion that Russia interfered in the 2016 election in support of his campaign and tried to do the same in 2020. At a 2018 Helsinki summit, he said Russian President Vladimir Putin told him “it’s not Russia.” When intelligence officials testified counter to his views on Iran and North Korea, Trump tweeted that they were “extremely passive and naive.” He added, “Perhaps Intelligence should go back to school!” In 2019, he called the FBI “badly broken”; this year, he said the FBI was letting members of the far-left antifa movement “get away with ‘murder.’”
Unsatisfied with his own appointed director of national intelligence, Daniel Coats, Trump nominated a replacement in 2019, John Ratcliffe, saying “the intelligence agencies have run amok.” This fall, Ratcliffe said that, at Trump’s request, he was declassifying documents related to the 2016 campaign — which Trump quickly used to press his false case that the Democrats were responsible for the Russia probe. Trump tweeted that he has authorized declassifying all documents to expose “the single greatest political CRIME in American History, the Russia Hoax.” Now his lawyers are fighting to keep the documents from being released. In September, when his appointed FBI director, Christopher A. Wray, told Congress that the Russians were at it again — while downplaying the threat of ballot fraud and antifa — Trump told reporters, “I did not like his answers.”
“When you pound the Justice Department and pound the intelligence community as being corrupt, incompetent, making up stories about what they do, it’s enormously demoralizing for those institutions,” says Jack Goldsmith, the former Justice Department official. “It reduces the legitimacy of those institutions in the eyes of the country.”
12. Publicizing lists of potential Supreme Court picks
President Trump took the novel approach of releasing lists of potential picks for the Supreme Court. As the Republican Party’s presumptive nominee in 2016, he issued the first version of the list with the names of 11 conservative figures. This was a masterful tactic by a candidate whose conservative bona fides were still somewhat in question, as it had the desired effect of convincing conservatives and evangelicals that Trump would not disappoint them in filling the seat left vacant after Antonin Scalia’s death. Trump expanded the list that fall, and it helped him win the election. He added to it twice more as a sitting president, publicizing each iteration.
This was a giant step toward cementing the idea that the court is political, with the meaning of the Constitution in question, depending on whether Democratic justices or Republican justices are in control. SCOTUSblog has noted that Trump’s tweet promising the latest update to the list came in June, shortly after the Supreme Court handed him two stinging defeats on immigration and LGBTQ rights.
...Based on decisions being rendered now, this list is more important than ever before (Second Amendment, Right to Life, Religous Liberty, etc.) – VOTE 2020!— Donald J. Trump (@realDonaldTrump) June 18, 2020
September’s additions notably included a half-dozen women — a constituency Trump needed for reelection — and a few conservative senators he may have wanted to flatter. Outside conservative groups played a huge role in curation, but the strategy was all Trump: “When it came to making the list public and the politics of it,” former White House counsel Donald McGahn told “Fox News Sunday” in October, “that was 100 percent the president.”
13. Making far more false or misleading claims than any previous president
Through Aug. 27, the sum was 22,247, to be exact, according to The Post Fact Checker’s database. The most repeated claim: “Within three short years, we built the strongest economy in the history of the world," which Trump has declared 407 times. Other favorites: “My job was made harder by phony witch hunts, by ‘Russia, Russia, Russia’ nonsense” (236 times). And: “We’ve done a lot: the largest tax cuts ever” (232 times). He also says things like “I was honored as the Man of the Year in Michigan at a big event,” which never happened (11 times). And: “My father came from Germany” (five times); his father was born in the Bronx. “Did you know I was number one on Facebook?” he boasted in April at a press briefing on the coronavirus response. (Actually, at the time, Barack Obama had nearly twice as many Facebook fans, and actor Vin Diesel nearly four times.)
“If the president is repeatedly seen to lie about matters big and small, it presents an enormous problem for the United States in the world,” says Trevor Potter, former chairman of the Federal Election Commission and president of the nonpartisan Campaign Legal Center watchdog group. “What does the world think when the president says something? When they know he says whatever he wants to say, regardless of whether it’s true or not?”
14. Abusing the pardon power
George H.W. Bush was criticized for pardoning Iran-contra figures, Bill Clinton for pardoning a fugitive financier, and George W. Bush for commuting the sentence of an official in a case related to the leak of an undercover CIA agent’s identity. But President Trump’s 44 pardons and commutations have been especially self-serving. All but five of the people who received clemency through early February had connections to the White House or resonance with Trump’s political base, according to a Washington Post investigation. He has rarely followed the normal process of vetting pardons through the Justice Department.
He’s also the first president who has mused publicly about pardoning himself. “No other president has, like Trump, used pardons systematically to serve political and personal goals,” write Bob Bauer and Jack Goldsmith, lawyers who served in the Barack Obama and George W. Bush administrations, respectively, in their book of proposed norms reforms, “After Trump: Reconstructing the Presidency.”
Recipients of Trump pardons or commutations have included former sheriff Joe Arpaio of Arizona, a hard-line anti-immigrant Trump supporter; conservative activist and writer Dinesh D’Souza; former Illinois governor Rod Blagojevich; junk-bond king Michael Milken; disgraced New York City police commissioner Bernard Kerik; and former media mogul Conrad Black, who wrote a flattering biography of Trump. Trump appears to be the first modern president to have pardoned people convicted of murder, in the cases of two soldiers sentenced for war crimes.
Most notoriously, in July, against the recommendation of the Justice Department, Trump commuted the sentence of friend and ally Roger Stone, who was convicted of lying about his efforts to learn about hacked Democratic emails during the 2016 campaign. Republican Sen. Mitt Romney tweeted in response: “Unprecedented, historic corruption: an American president commutes the sentence of a person convicted by a jury of lying to shield that very president.”
15. Using government resources for partisan ends
From his first full day in office, when President Trump ordered the National Park Service to produce photographic evidence that his inauguration crowd was larger than Barack Obama’s (it wasn’t), he has used the levers of government to score personal or political points. When federal meteorologists in Alabama publicly contradicted his false forecast of a hurricane’s path in 2019, he pressured officials in the Commerce Department and the National Oceanic and Atmospheric Administration to issue a statement undercutting the meteorologists and justifying his Sharpie-scrawled weather chart. He attacked political enemies during official presidential addresses, such as his speech to the 2017 Boy Scouts’ National Scout Jamboree that was so partisan that the head of the Scouts later apologized.
Ethics watchdogs say this behavior reached a crescendo during the Republican National Convention in August, when the White House served as a backdrop for days of campaign activity. Trump presided over a naturalization ceremony and issued a pardon in the White House, with both events replayed during the convention program. From a stage before the White House portico, Trump’s 70-minute speech accepting the Republican nomination was a scathing attack on Democrats followed by fireworks that spelled the word “TRUMP” over the Mall.
The president is exempt from the Hatch Act, which bars political activity by government officials while at work, but, says Trevor Potter, the former FEC chairman, “The norm is that you try to separate the White House from your political activity. ... The Hatch Act doesn’t apply to the president, but it applied to all those people who had to help him put that together at the White House.”
White House officials told The Post at the time that it was mainly campaign staff who executed the events, in compliance with the Hatch Act; government officials were working on their own time. White House Chief of Staff Mark Meadows said of the Hatch Act to Politico: “Nobody outside of the Beltway really cares.”
Can We Restore Broken Norms?
With Trump’s presidency coming to an end, it’s tempting to assume that respect for these soft guardrails of democracy will naturally be restored and reinvigorated — that even a narrow repudiation of Trump at the polls will be taken as proof by future presidents that norm-breaking is not a winning strategy.
But that’s a naive faith. More likely, future presidents will assess how some of the latitude seized by Trump could be useful. “My guess is it’s somewhere between what it used to be and what Trump has done,” says Trevor Potter, the former FEC chairman and head of the nonpartisan Campaign Legal Center. “They will do things that are convenient for them. ... Because once these lines have moved this way, it is very hard to move them back.”
The only way to counter normative drift is to stiffen the guardrails. “It’s going to take deliberate effort to return our system to one where democratic traditions predominate as they have in the past,” says Noah Bookbinder, executive director of the nonpartisan Citizens for Responsibility and Ethics in Washington. “One of the things we have learned is that there may be a need to codify a whole lot of things that maybe people thought were laws or rules but were, in fact, just traditions, because it never occurred to most of us that anybody would want to systematically flout the kinds of practices that protect a strong democracy.”
In their book “After Trump: Reconstructing the Presidency,” Bob Bauer and Jack Goldsmith, lawyers who served in the Barack Obama and George W. Bush administrations, respectively, propose more than 50 changes to bolster norms, focusing on protections against abuses of power for personal or political gain, interference with the Justice Department and other areas. House Democrats recently assembled a package of reforms, including restrictions on the president’s pardon power, protections for inspectors general, and tougher rules against presidents enriching themselves or using government resources for political or personal ends.
But reforming norms is a delicate business. Not all norms can be reduced to statute — nor should they be. Part of the genius of the American system is that norms fill in subtle spaces around laws and provide essential flexibility for the presidency to evolve.
The norm of restraint — of not doing something, even if it’s technically legal and you have the power — is endangered not just in the White House, but on Capitol Hill and across Washington. It’s the most vital norm of all — and the hardest to preserve.
16. Making racialized appeals and attacks
No president in the modern era has relied so heavily on racialized appeals to his base. In 2019, President Trump tweeted that four congresswomen of color should “go back and help fix the totally broken and crime infested places from which they came” (even though three of them were born in the United States). It was one of several examples over the years of Trump suggesting that citizens of color or naturalized immigrants are less American than White people.
After Joe Biden picked Sen. Kamala Harris to be his running mate, Trump echoed the racist birther theory he once employed against Barack Obama to suggest that Harris, the daughter of immigrants from Jamaica and India, might not be eligible to serve as vice president. He called Black Lives Matter a “symbol of hate.” Complaining that children “have been fed lies about America being a wicked nation plagued by racism,” he called in September for a “pro-American” curriculum in schools, and he sought to ban anti-racism training in federal agencies. That month, in the first presidential debate, he asked the far-right group the Proud Boys to “stand back and stand by.”
17. Dividing the nation in times of crisis
During national crises, presidents are expected to hold the country’s hand and pull us together, if only for a little while. Think of Franklin D. Roosevelt after the bombing of Pearl Harbor in 1941, Ronald Reagan after the 1986 explosion of the space shuttle Challenger, or Barack Obama singing “Amazing Grace” at the funeral for the pastor killed in the 2015 Charleston, S.C., church massacre.
President Trump has declined to do this. Instead, he drew lines. He saw “very fine people, on both sides” after a white nationalist protest in Charlottesville turned deadly in 2017. He called racial justice protesters “thugs.” As the coronavirus pandemic was killing more than four times as many Americans as died in the Vietnam War — and counting — he attacked Democratic governors for their pandemic response. Speaking at Mount Rushmore ahead of Independence Day in what the White House billed as an official presidential address — not a campaign event — Trump veered quickly into a dystopian description of a nation split between a “left-wing cultural revolution” and those “strong and proud” Americans who “will not allow our country and all of its values, history and culture to be taken from them.”
“Donald Trump is the first president in my lifetime who does not try to unite the American people — does not even pretend to try,” wrote former defense secretary Jim Mattis in the Atlantic in June, after Trump called for troops to respond to protests. “Instead, he tries to divide us.”
18. Contradicting scientists
Norms guiding the presidency are meant to ensure that decisions on policy aren’t arbitrary or overly political, and that the best expert guidance is heeded. President Trump’s rejection of these customs has been on display during the coronavirus pandemic. His fancy with the antimalarial hydroxychloroquine pressured the Food and Drug Administration to grant emergency approval for the drug’s use in covid-19 treatments — which the FDA later withdrew when the drug’s risks became evident.
Trump contradicted top scientists on the Coronavirus Task Force over guidance on wearing masks and avoiding large crowds — including the president’s own rallies — while political appointees inside the Centers for Disease Control and Prevention tried to block critical reports that suggested the pandemic was not under control. Instead of relying on infectious-disease experts like Anthony Fauci, Trump appeared to favor doctors who were skeptical of masks and expanded testing.
Promising a vaccine at “warp speed,” Trump was furious when the FDA imposed tough safety standards that all but ensured a vaccine would not be available before Election Day. He attacked his own appointed scientific directors for plotting against him: “New FDA Rules make it more difficult for them to speed up vaccines for approval before Election Day,” Trump tweeted, tagging FDA Commissioner Stephen Hahn in the tweet. “Just another political hit job!”
19. Derailing the tradition of presidential debates
Presidential debates are not always illuminating, with candidates resorting to talking points and the occasional well-rehearsed zinger. But the first 2020 presidential debate was an unprecedented cacophonous fiasco, largely because President Trump ignored the agreed-upon rules and interrupted Joe Biden 71 times in 90 minutes. “I never dreamt that it would go off the tracks the way it did,” moderator Chris Wallace told the New York Times afterward. “I guess I didn’t realize … that this was going to be the president’s strategy, not just for the beginning of the debate but the entire debate.”
“This is the first time we’ve faced anything that existed like last night,” Frank J. Fahrenkopf Jr., co-chairman of the Commission on Presidential Debates, said following the first debate, and he vowed reforms. After the second debate was canceled because Trump refused to participate in a virtual event, the final debate featured a microphone mute button to cut down on interruptions.
20. Undermining faith in the 2020 election results
Every incumbent president in American history has accepted the prospect of a peaceful transfer of power. No sitting president in modern memory has gone into an election predicting fraud and illegitimate results. President Trump is the radical exception. In the months leading up to the election, he repeatedly forecast a rigged debacle and speculated that the winner may never be known.
RIGGED 2020 ELECTION: MILLIONS OF MAIL-IN BALLOTS WILL BE PRINTED BY FOREIGN COUNTRIES, AND OTHERS. IT WILL BE THE SCANDAL OF OUR TIMES!— Donald J. Trump (@realDonaldTrump) June 22, 2020
In September, he told reporters: “We want to make sure the election is honest, and I’m not sure that it can be.” When asked whether he would commit to a “peaceful transition of power,” he responded, “We’re going to have to see what happens.”
“No other president has ever said anything like that, because this is an active, ongoing attempt to undermine confidence in our election system,” says former FEC chairman Trevor Potter. “Trump is trying to convince a significant piece of this country — his supporters — that if he loses, it was stolen. That is a tactic of authoritarian leadership. ... And that is, in my knowledge of American history, completely unprecedented, at least in the last hundred years.”
In the days after the election, Trump has seemed determined to do still more damage on this front. As Joe Biden began to overtake him in key states, Trump told reporters: “If you count the legal votes, I easily win. If you count the illegal votes, they can try to steal the election from us.” On Saturday, hours after media outlets called the election for Biden, Trump tweeted: “I WON THE ELECTION, GOT 71,000,000 LEGAL VOTES.” He still refuses to concede. This presidency, it seems, will be abnormal to the end.
Correction: An earlier version misstated the audience to whom U.S. District Judge Paul L. Friedman delivered an address last year critiquing President Trump. The annual Judge Thomas A. Flannery Lecture was organized by lawyers who used to work for Flannery, not The American Law Institute.