Richard A. Epstein
As this essay is written, it is certain that President Donald J. Trump will be out of office by noon on January 20. What is not certain is the manner of his departure. He may leave earlier by resignation, under the complex provisions of the 25th Amendment, or by impeachment followed by trial. Much depends on the interpretation given to the tumultuous events of January 6. The proposed articles of impeachment are likely to stress that Trump incited riots, insurrections, or worse.
It is here that we need to inject a note of caution. Proof of those powerful charges is a complex issue because of the causal question of the relationship between what Trump said to his supporters and the indisputable acts of violence that took place at the Capitol. The physical movements, motivations, and timing of many individuals must be examined closely, which means that it is impossible to allow for adequate preparation of defense during the next nine days. There are still further questions of exactly who did what inside the Capitol, in light of the manifest shortcomings of the Capitol police. Their lack of preparedness and, at times, seeming acquiescence to the crowds outside likely amplified the negative consequences of Trump’s actions.
One can be deeply critical of Trump’s efforts to overturn the results of the Electoral College and still acknowledge that the fundamental protections of procedural due process apply with special urgency to disfavored and despised individuals. Contrary to a growing narrative, there are also reasons to question whether his conduct amounts to either an insurrection or a coup. There is simply no time for adequate consideration of articles of impeachment, let alone for conviction after trial.
In light of these serious procedural and substantive suggestions, my vote is for his immediate resignation as the least offensive escape from this ugly impasse. That is not a new position for me. As early as January 2017, at the time of Trump’s initial executive order on immigration and border security, I stated publicly that Trump should resign. My conclusion was that he lacked the temperament, stability, and character to hold the highest office in the land.
Yet so long as he remained in office, two further principles applied. The first is “Trump a la carte.” By this phrase, I mean that it is impossible to back or oppose him across the board on substantive policy issues. Trump is intellectually undisciplined and erratic, often reaching the right result for the wrong reasons. Take, for instance, his decision to withdraw from the Paris Climate Agreement in 2017. In his withdrawal statement, he stressed nationalist economic objections while ignoring the agreement’s shaky scientific assumptions. Second, it is imperative to distinguish between Trump the man and the Trump administration. As a rule of thumb, the greater the independence from Trump, the higher the performance of his appointees. Chief aides such as Jim Mattis and Bill Barr exhibited a by-now-familiar rise and fall, starting in his good graces before being subjected to huge personal abuse, leading to their inevitable resignations. These two maxims best explain Trump’s successes and failures in both domestic and foreign affairs.
Character and Actions
So how does one reflect on the Trump presidency? Start with his character. The indictment is clear. Trump is far too easy to anger, and too easily baited by his opponents. He rapidly oscillates between obnoxious bullying, juvenile insults, and servile self-pity. His better moments cannot offset the mood swings, Twitter outbursts, racist comments, and personal assaults on his own friends and colleagues. His abusive performance in the first presidential debate of 2020 was probably the largest single cause of his defeat at the ballot box. In addition, the Democratic opposition, well aware of his character flaws, baited and harassed him every step of the way. He was never in their eyes a legitimate president, which made him fair game for the hapless Mueller investigation, the highly questionable impeachment proceedings, and more. None of these endless provocations excuses or justifies his outbursts, but they do help explain his ever-more-erratic behavior and heightened rhetoric since November. And, sadly, there is reason to fear that a similar cycle of recrimination and abuse will take hold of the new Biden administration long after Trump has left office. Civility is always a two-way street.
To my mind, the key tension in this election is the distinction between Trump the person and the Trump administration. The latter includes Vice President Mike Pence, who deserves high praise for acting correctly and courageously by resisting Trump’s wrath and refusing to do anything more last week than “open” the ballots so that they could be counted, as the Twelfth Amendment specifies. And Pence would be right to resist Democratic calls to invoke the 25th Amendment to strip Trump of his powers, or have Trump face the prospect of an immediate impeachment vote—a vote that could easily take place without any discussion of the relevant questions of law and fact. Starting in 2017, Pence could have offered some policy continuity without Trump’s endless Sturm und Drang.
At this moment, it is still uncertain whether Biden will move to the center or appease his progressive wing, just as it was uncertain in 2016 whether a President Hillary Clinton would move to the center or to the left. In 2016, the negatives on Trump were far stronger than during the runup to the 2020 campaign, so that then I could not vote for either. But for all his defects going into the 2020 campaign, Trump had outperformed expectations and was worth the gamble. Indeed, I think that he would have won if COVID-19 had not struck in March 2020. For all his faults, Trump was unfairly blamed for much of the pandemic-related disarray even though the key public health and economic decisions about COVID were made at the local level by such state governors as Andrew Cuomo in New York, Gavin Newsom in California, and Gretchen Whitmer in Michigan.
The issue, then, turns to performance. Over the years, Trump has hurt himself with his hostility toward free trade and his harsh positions on immigration. In addition to his January 2017 executive order, no one can forget the decision his administration made to keep immigrant children in cages after separating them from their parents.
But other decisions and actions paint a more mixed picture. On the domestic front, progressives regard his 2017 tax cuts as a destructive giveaway to the rich and his labor policies as undercutting labor unions and minimum wage laws, laws that Biden and his new secretary of labor, Marty Walsh, strongly support. In foreign affairs, there is much to criticize about Trump’s tough stance on NATO and his supposedly close relationship with Vladimir Putin. But even here, I think that the great achievement of the Trump administration lies in the Middle East, where he moved the US embassy to Jerusalem and revitalized regional relationships. The latter effort was accomplished by his much-maligned son-in-law Jared Kushner, who managed, after the debacles of the Obama years, to propel the normalization of Israeli relations with key Arab neighbors such that the success of Israeli-Palestinian negotiations is no longer a precondition to regional peace. The administration often did well, even when the president did not.
This brings us to the bottom line on Trump. Bret Stephens’s December 14 column in the New York Times, “Donald Trump and the Damage Done,” gives away the game. He starts by noting that in January 2017, every anti-Trumper was worried about thermonuclear war, bitter military conflicts with North Korea and Iran, a muzzled free press, blackmail by Putin, and Trump judges undermining the rule of law. Though Stephens is ultimately critical of Trump, he admits that none of that came to pass. What he does not note is the surprising stability of NATO, the improved situation in the Middle East, the relatively tougher positions on Russia and China, the stock market and (pre-COVID) domestic employment booms, and the appointment of a first-class set of Trump justices and judges who uniformly stood their ground during Trump’s post-electoral efforts. Trump did more than escape disaster. He made lasting improvements to the nation.
Stephens then offers a giant “so what,” claiming that what Trump did was to corrode social trust—a charge that is true against both him and his many strident critics, starting with Chuck Schumer and Nancy Pelosi. The past two months should not define either the strengths or weaknesses of Trump’s substantive proposals. I hope that it will become possible to decouple the Trump administration’s sound positions on judges, taxation, and regulation from the man himself, and defend those positions on their merits. There is no room to claim that any position Trump supported should be rejected on that basis alone—and indeed in the coming years, it will be a welcome relief to substantively argue for classical liberal positions without needing to disentangle them from Trump’s persona.
Looking forward, the key issue for the incoming Biden administration will be to present the intellectual and moral case for resisting persistent progressive efforts on two fronts. Domestically, it will be critical to resist their push for massive regulation and taxation, as well as mandated orthodoxy in the political and intellectual spheres. In foreign affairs, it will be crucial to resist efforts to reset the balance in the Middle East in favor of Iran, and to support efforts to help democratic Hong Kong resist its Chinese overlords. Ironically, we will not be able to assess the Trump administration until we see how the Biden administration handles its uncertain legacy.