The norms, expectations and opportunities of American politics are changing
Let’s get ahead of ourselves. I do not expect Donald Trump to win a second term and neither do punters betting hard cash. At the time of writing, he was just over 2.2 on Betfair to win November’s election and marginally odds against with traditional bookies. I think that’s still a bit short. Trump’s job approval figures have just dropped to a seven-month low (albeit within quite a small range), and Biden keeps pumping out solid leads in both national polls and those conducted in swing states.
In terms of the outlook for the next five months, it doesn’t look great for the president either. A majority of the public disapprove of his handling of the Covid-19 epidemic (the figures are against him by about 53/43), and that crisis is unlikely to go away given how high new infections remain across the country. Relatedly, while the unemployment figures dropped this week, the 13.3% rate remains considerably higher than the worst point in the recession of 2008-10.
Meanwhile, his response to the protests following the death of George Floyd has overtly played to his base as well as having been largely ineffective. Given all that, he has a tough task to win over enough swing voters, or to persuade enough current Biden-backers to stay at home, in order to gain victory. If either the unemployment rate stays in double figures or the Covid-19 cases fail to subside, we can reasonably expect more unrest into the summer and autumn as lives and livelihoods are lost.
But he might win – and that needs to be our starting point. So the first question we need to ask is ‘how?’, and we can best answer it by winding back the clock four years. Trump is not a subtle beast and in terms of strategy we can reasonably expect an updated version of 2016: assertions that he delivered on his promises, assertions of greater things to come under him, and vicious half-truth attacks on his opponent.
On that final point, Biden is a better candidate than Hillary Clinton was but he still has weak spots that Trump could exploit – and one of Trump’s two genuine political skills is in negative campaigning. We can probably expect a return to the Biden-Ukraine story that so nearly derailed his campaign in the primaries, alongside questions about his health, his behaviour and his legislative record. That Trump might also have weaknesses on these issues isn’t the point: Trump has never been bothered by consistency nor critical self-appraisal. His purpose in the attacks isn’t necessarily to win over voters; just to stop them backing his rival.
On top of the regular campaign, Trump also has one immeasurable advantage over 2016: his unchallenged status as head of a political movement which incorporates the Republican Party but in truth is founded outside it.
In the last four years, Trump has remodelled American politics: it norms and its methods. Anne Applebaum gives a magisterial account of how he’s done that and some of the consequences of his having done so in her Atlantic article this week but for our purposes, what we need to note is that Trump not only rejects the polite norms of politics but is willing to embrace any methods which advance his cause (and his cause is himself first, his family second and his friends third). That others might consider them unethical or even downright illegal doesn’t matter as long as they work. With a pet Attorney General and hence a tame Department of Justice, that gives him a lot of scope. For now (a point we’ll come back to).
Trump’s reforming of the psychology of American politics (and to no small extent, of America itself) has been his other great political accomplishment, and by some way the more significant. If he does win a second term, it will grant even more legitimacy to his methods, his mind-set and – to the extent which someone so self-centred and short-termist has them – his policies. Ugliness will become the default; the expectation; the standard to which those in DC and those anywhere Trump turns his attention have to operate. For where Trump goes, his army of followers, online and in person, go too.
If Trump does win in November then there’s a reasonable chance the Republicans may hold on to the Senate too, though it will be close. While not every Republican vote can be guaranteed, again, Trump’s mob can be mobilised to exert a lot of pressure on recalcitrant (and, for that matter, on Democrats who might be persuadable). There’s also a reasonable chance that it will have come through more outrageous lies and interference with the democratic process.
To those who say that Trump doesn’t have the power to intervene, that misses what power is. True, election are run by states but they’re also run by politicians in America and those politicians are susceptible to the same pressures Trump can unleash via his lip, his tweet and his fanbase. They’re also capable of working to the standards that Trump legitimises – and of course they have their own interest in doing what help the Republican Party. Expect procedural attempts to suppress or enhance the partisan vote on an even greater scale than usual.
These methods, however, come with a price. If he loses power, the investigations will be vigorous and there’s a good chance Trump could be fighting off legal actions for years. Hence his great incentive to win, at whatever cost and in whatever way.
Whether Trump accepts that he might be the legitimate target of such investigations is doubtful: he genuinely seems incapable of differentiating between his personal interests and his public role. He will, however, understand that his enemies might well try to ‘get’ him given the chance because that’s what he’d try to do in their place. Either way, retirement is off the table: he needs his hands on the levers of power and particularly the Department of Justice, as noted earlier.
Which brings us to 2024. “Hang on an minute”, you might say. “Trump can’t stand a third time: he’d be barred by the 22nd Amendment”. Well, technically he could stand but he couldn’t be elected and he’d struggle for ballot access anyway as an ineligible candidate. But that is not the end of the story.
If Trump believed he needed to protect himself through a third term, could he do it? Very probably, yes.
How? There are two routes we should raise here simply in order to dismiss. One is that he could simply ignore the constitution and carry on, with or without an election. Trump has certainly wreaked great damage on America’s body politic and no doubt could corrupt it further still in a second term but it’s hard to see how he could simply render the constitution null. To do that, he’d need to subdue either the judiciary and law enforcement systems, or the military, to his personal will. He can’t – or not without provoking an outright revolution. Nor can he cancel the election be executive fiat. Again, these are constitutionally mandated and organised by the states (and many other politicians need them for their own careers and interest, unless they too wish to be complicit in a coup that would place their own position virtually entirely at Trump’s whim). Besides, as the likes of Putin have shown, it’s better PR and simpler legally to go through the motions of an election.
The other is that he could change the constitution and repeal the 22nd Amendment. While there are good arguments for that in principle (why shouldn’t people be able to elect a government of their choice?), now is not the time. Trump is not going to begin a battle he won’t win and where there’s no advantage in losing. To change the constitution requires the amendment to be ratified by three-quarters of the states, even if the two-thirds of Congress requirement could be circumvented (and it could) – and the Republicans don’t have and won’t have control of 38 states.
So where does he go? One option is simply to install a proxy. True, that wouldn’t actually mean a third term but there are several examples across history of national ‘paramount leaders’ holding no formal office, which they left to trusted lieutenants – Stalin did so until 1941. The problem with that though is that I’m not sure there’s anyone that Trump trusts who also has the brazen and shameless PR skills to do the front-of-house job. No-one else in his family does.
Instead, he could go for the Putin option and switch the ticket, serving as notional Vice-President to Mike Pence but dominating the campaign and the administration. Again, this would be a third term in fact but not in name.
Here, we need to get a bit technical with the US constitution. The 22nd Amendment’s relevant (and opening) clause states that “No person shall be elected to the office of the President more than twice”, while the 12th Amendment says that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President”. Note the subtle difference in wording. The later Amendment only prevents someone from being elected to a third (or subsequent) term; it does not explicitly prevent them from serving as president, should they inherit it from another position – including the Vice Presidency. And if they can inherit the presidency, then it follows that they are not barred from being elected Vice President by the 12th Amendment.
There are certainly those who disagree with that literal interpretation and assert that the intent of the 1951 Amendment was to prevent anyone serving more than ten years and that the 12th Amendment should be read in that context. This debate only matters here in as far as the Supreme Court might answer it: our own opinions are of little relevance (though for what it’s worth, I prefer to interpret according to the text as written rather than as imagined).
Which is where the Senate election in November comes in. Law should not be a matter of politics but on constitutional matters it inevitably carried an element of it, particularly in the US. I can’t honestly say how the Court would rule on the 12/22 question – the division characterised as liberal/conservative does not necessarily translate directly to pro-/anti-Trump – but if the GOP could gain another Justice (and two liberals on the Court are into their eighties), it couldn’t do any harm.
Assuming Trump could win that ruling – and it’s not one that’s stretching a point – it opens up an even more direct possibility: he could run for the Vice Presidency purely as a mechanism through which to transfer to the top job, with the actual nominee always intending to resign in Trump’s favour, before or after inauguration but certainly after the Electoral College votes are counted. But that might be playing the game too much.
The point is American politics has changed. The language and style has changed but so has its very nature. Codes of conduct have been stretched and unspoken assumptions no longer hold. If Trump wants three terms, they’re there to be had.