Preferences, Norms, and a President Who Can’t Tell the Difference

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Posted in: Law Practice

The president, who cannot resist sticking his foot in his mouth, was at it again last week when he attacked and insulted April Ryan, Abby Phillip, and Yamiche Alcindor, three respected journalists who also happen to be strong, smart, independent black women. His boorish behavior has renewed the claim that he is subverting the norms of American life. Though I am eager to return to my series on the future of the American city, I will push it back once again to address this old canard, which strikes me as dangerously incorrect.

Let me approach the issue this way. When I read that law enforcement had arrested and charged Cesar Sayoc with mailing a dozen or so pipe bombs to prominent Democrats and critics of President Trump, I found myself wondering—as I often do when there is a high profile arrest—whether I would defend Mr. Sayoc in his criminal case. And the answer, as it just about always is, was yes, of course I would, to the best of my ability.

I have no idea whether Mr. Sayoc is criminally responsible for mailing these bombs, and would remind people that there is more to criminal responsibility than having committed the act; there is, for instance, the matter of his mental state to consider. But even if I knew that he were guilty, the knowledge would be irrelevant to whether I would take his case, just as it was irrelevant when I decided to represent men detained at Guantanamo. Mr. Sayoc’s guilt may influence how, but not whether, I would defend him.

In addition, I am exceedingly critical both of the president (who I think is a dangerous buffoon), and many of his policies (which I think are morally reprehensible). This apparently would have put me at odds with Mr. Sayoc, to put it gently, at least if we can take his enthusiastic presence at presidential rallies and activity on social media as a guide. If Mr. Sayoc sent those bombs as a declaration of his political views, then I strongly suspect he and I do not see the world the same way, and that if we met in a bar I doubt very seriously that we would strike up a conversation and become fast friends. But that too is irrelevant to whether I would be his lawyer.

There is, in other words, an important difference between preferences and norms. In a world of Venn diagrams, my personal views about Mr. Sayoc, including his apparent political choices and his alleged behavior, do not intersect with the social and legal norm of vigorous representation in a criminal case. In fact, if they did intersect, and if my views about him or his conduct were so strong that they prevented me from providing him with a zealous defense, the ethical rules governing attorney conduct prevent me from becoming his lawyer. The social norm, in other words, trumps my personal views. If they align, so be it; but if they do not, the norm must win.

What is true in criminal defense is true throughout society: the norm is not the same as the preference, and in the case of conflict between the two, the norm has to win. Fortunately, for most people most of the time, this poses no existential difficulty. Their preference aligns with the norm, and doing what is legally required or culturally expected is the same as doing what they want. The restauranteur and hotelier offer their services to the all customers equally not simply because it is the cultural and legal norm, but because they want to. But if they didn’t, the norm wins.

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Sadly, the president misunderstands the elemental distinction between social norms and personal preferences. Yet this distinction, and his indifference to it, has largely escaped comment, leaving the problem misdiagnosed. Look more closely at the president’s supposedly norm-breaking behavior. President Trump does not reject norms as much as conflate them with his personal preference. To the president, the norm is legitimate only to the extent it coincides with his personal views.

It is often said, for instance, that Trump has trampled the venerated norm of presidential respect for law enforcement, “wreaking untold damage on institutions that form the bulwark of a democratic society.” As evidence, critics point to his frequent and intemperate attacks on former Attorney General Jeff Sessions, Special Counsel Robert S. Mueller, the FBI, and the intelligence community.

Though he has certainly lobbed these rhetorical bombs, the charge that Donald Trump is anti-law enforcement is ridiculous. In fact, he fawns on the police, repeatedly appears at law enforcement events, often enlists police to appear at his policy announcements, and regularly makes “law and order” a cornerstone of his demagoguery. President Trump encouraged police to use excessive force when making arrests, pardoned former Maricopa County, Arizona, Sheriff Joe Arpaio after he was convicted in federal court of criminal contempt, and threatened to “send in the feds” to combat violent crime in (Democratic) cities like Chicago. We can rightly accuse Donald Trump of many things, but being anti-law enforcement is not among them.

We should see the president’s attacks for what they are. He emphatically does not reject the norm of presidential respect for law enforcement. He simply places his personal preference ahead of the norm whenever law enforcement threatens him or those in his social milieu. When law enforcement acts consistent with his personal preference—as when Sheriff Arpaio illegally targeted undocumented aliens—the president is perfectly happy with the norm. In fact, he protects it from what he sees as a politicized judiciary. It is only when law enforcement encroaches on his personal preference, as when Sessions recused himself from the Russia investigation, that he challenges the norm.

His subjugation of norms to preferences is even more evident in his frequent attacks on the press. Though he repeatedly declares the media “the enemy of the people,” in fact he trains his ire only on those in the 4th estate with the temerity to challenge him or his policies, and seems especially unhinged when the challenge originates from smart, black women, a demographic toward which he is particularly hostile and which reciprocates by holding him in singular contempt. To the president, only bad, unwelcome, or even faintly skeptical news is “fake.” Indeed, he is perfectly candid on this score. Fawning FOX News is not the enemy of the people.

In fact, even when the president purports to align himself with prevailing norms, the attachment is transparently self-serving. His belated embrace of due process and the presumption of innocence for men accused of wrongdoing, for example, did not prevent him from calling for the imprisonment of Hilary Clinton or the execution of the Central Park Five (who were subsequently exonerated). What he means is that suspects like him deserve the benefit of social and legal norms—people like Supreme Court Justice Brett Kavanaugh, former White House staffer Rob Porter, and former Alabama Supreme Court Justice Roy Moore, all of whom have been accused of assaulting women. This is a far cry from embracing norms without regard to personal preference.

Many people have been slow to recognize the fact that Trump exalts preference over norm, perhaps because they are unaccustomed to a president who deliberately places the former above the latter. As a result, they seem to think that when he is, for instance, attacking law enforcement, he is actually attacking the norm. But this is simply mistaken. He is not attacking law enforcement; he is making a statement that law enforcement should not apply to him, and that an investigation of him and those in his social milieu is an abuse of power. Likewise, when he charges the media as the enemy of the people, he is not attacking the press; he is making a statement that the media should not investigate him or challenge his hegemony. And when he insists on due process, he is not defending the presumption of innocence; he is making a statement that he and those like him, and none others, are entitled to the protections of the Constitution. Some observers of Trump’s behavior have detected what they call a “legal philosophy,” as if to give it some intellectual dignity. It is no such thing. It is the crass perversion of legal and social norms to get what he wants.

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Why does all this matter? Ultimately, if we are more concerned with what he does than why he does it, who cares about his motives?

We all should. First, there is an inherent value in seeing something for what it is rather than what we imagine it to be, and to calling it by its name. The president is not a courageous norm-bender determined to take the country in a bold new direction. He is a pampered pig who thinks the rules do not apply to him. He is perfectly content with the norms, so long as they conform to his personal desires.

Second, because so many people mistakenly believe the president is acting out of a sincere antipathy to the norm, rather than a base attachment to his own preferences, they have similarly come to question the norm, which in turn puts it in jeopardy. For example, polling shows that a majority of all Republicans now believe, per the president, that the media is the enemy of the people. Likewise, a majority of Republicans believe the FBI does not enforce the law fairly and is biased against the president, and fewer than one in four trust the Bureau to behave properly in a criminal investigation. This in particular is a dramatic reversal from years past. Important social and legal norms are thus under siege not because they are illegitimate, but because they refuse to jump at Trump’s command.

Third, his oft-shown determination to place his personal preferences above widely accepted social and legal norms justifies, at the very least, a strong suspicion that everything he does is similarly self-serving. We are right to ask, therefore, and demand to know, whether his overtures to Saudi Arabia are for the good of the country, or for personal gain. We are right to ask, and demand to know, whether his trade war spats are good faith attempts to protect American industry, or for him and his family to benefit from the wild market gyrations that inevitably follow his tweets. We are right to ask, and demand to know, whether his kowtowing to Vladimir Putin is a genuine attempt to improve relations with a world-power, or an obsequious attempt to curry financial favor with a corrupt kingmaker.

Recently, The New York Times published what it called “a definitive list of self-dealing by the president, his family, his staff or his friends — since he began running for president.” Of course, compiling such a list is like trying to paint a moving train and becomes incomplete almost as soon as the compiler presses send. More importantly, however, the record is simply inadequate to make a firm judgment about many of the most egregious examples on the list. The Times reports, for instance, that the Trump Organization “reportedly received a $500 million loan from a company owned by the Chinese government.” Two days later, the president tweeted that he was “working to lift sanctions on a Chinese telecommunications firm with close ties to the government,” despite bipartisan objections in Congress. True to his word, he did in fact lift the sanctions.

Whether there was a quid pro quo, as the Times hints, has not been conclusively established, which is why I frame the matter differently from the Times. The question has not yet been resolved, but there is certainly enough evidence to conclude that the president has forfeited the presumption of good faith that ordinarily attaches to presidential action. We should investigate him and his dealings, therefore, because there is substantial evidence that he is in fact an id-driven kleptocrat.

The inadequacy of the record gets us to the final, and perhaps most important problem. The determination to elevate preference over norm is a virus that cannot be readily contained. Before long, it infects other actors in society, who likewise see fit to disregard the norms that govern their conduct when they conflict with bare desires. At the institutional level, at least for the past two years, this manifested itself in Congress’ abject failure to exercise its constitutional responsibility to oversee and check the president. The reason we cannot, as yet, know whether the Times is right is that Republicans within Congress have refused to demand answers. Why? Because they don’t want to know. Their preference has trumped the norm. Whether that continues now that the House of Representatives has changed hands remains to be seen.

And if abdication is the effect on the institutional level, the effect on the individual level is even more dangerous. It was captured long ago by Supreme Court Justice Louis Brandeis, who issued a warning worth repeating:

In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

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As I was reflecting on whether I would represent Cesar Sayoc, news came over the transom that our descent into anarchy had taken another long step. Robert Bowers, determined “to become a law unto himself,” stormed into a Pittsburgh synagogue with an automatic rifle yelling, “All Jews must die.” At his hand, eleven did. I am an American Jew with family in Israel. When I read the news, I asked myself, again, whether I would represent Mr. Bowers. The answer is yes, because the norm trumps the preference.

On the same day, the president repeated his charge that the media was the enemy of the people. It is long past time we recognize statements like this for what they are: the rantings of a pathetic man who has a tantrum when he doesn’t get his way. He’s not a norm-bender, he’s a child.