In December of 2000, more than a month after the election between Republican George W. Bush and Democrat Al Gore, America still had no president-elect.
The electoral vote was tied so that the outcome hinged on Florida. Voting irregularities in Florida’s arcane system meant that thousands of ballots were unclear. So both parties fought bitterly over how to handle it. Out of nearly 6 million votes cast in Florida, Bush’s margin was just 537–an infinitesimal number.
America was on the brink of constitutional crisis.
Each side claimed victory in the chaos of the recounts. The Florida state legislature (Republican-controlled) declared Bush the winner while the state Supreme Court (Democrat-controlled) declared Gore the winner. What if the state of Florida sent two opposing results to Washington?
And what if, by Inauguration Day of January 20, 2001, neither candidate conceded and both Bush and Gore showed up to the steps of Capitol Hill to be sworn in? Imagine two different crowds saying that their guy won. Then a street melee. Casualties. Escalating violence.
What is meant by constitutional crisis?
Constitutional crisis just means that there is a dispute in the legal system that its institutions have no method of resolving. These can occur when the Constitution is unclear, where it contradicts itself or where its meaning is in question. Branches of government may exceed their authority or may defy the jurisdiction of another. Or a law could be outright defied.
If neither side had budged, the Bush Gore election would’ve led to a full-blown constitutional crisis. But Al Gore recognized the danger and conceded the presidency to Bush, even though Gore believed he won. So Bush became the 43rd president.
The History Doctor’s Top Five Constitutional Crises
In our history, the most memorable crises include:
- The death of a sitting president in 1841, William H Harrison. Would Vice President John Tyler be sworn in as the new president, or just serve as acting president?
- The secession of states in 1860 and 1861, including South Carolina and 11 states in all, resolved, tragically, by the bloody Civil War.
- The chaotic election of 1876 where the states could not agree on who won between Rutherford Hayes and Samuel Tilden. The election was resolved by special commission, found nowhere in the Constitution. That’s right, they made it up as they went along!
- Watergate of the mid-1970s, when President Nixon misled federal law enforcement in an attempt to conceal political crimes.
- Bush vs. Gore, see above
You can argue the ranking! Or better yet, make your own Top Five and share them in the comments section.
And now we have the Trump administration holding the potential for new kinds of constitutional crises, partly because of the novelty of this presidency. Questions include:
- Can a sitting president use the office to direct profits to businesses he controls?
- What if the courts strike down the travel ban, but President Trump enforces it anyway?
- What if Congress says that the Dreamers can stay, but Trump deports them anyway?
- And, the granddaddy of all, can a president pardon himself?
All these may create unresolvable conflicts between different branches of government. So what happens then?
The Kremlin
The Russian connection and the special prosecutor
Members of the Trump campaign allegedly enlisted the help of Russian agents to win the election. A Special Prosecutor was appointed to investigate. What processes might unfold next?
Recall that an Independent Counsel such as Ken Starr, famous for investigating the Monica Lewinsky/Bill Clinton scandal, is not the same thing as a Special Prosecutor. Here’s the difference: An IC is appointed by Congress, reports to Congress alone and cannot be fired by the president. A SP is appointed within the Justice Department, which is under the president.
Robert Mueller, former FBI director and the SP, is looking into potential acts of collusion between Trump’s campaign people and the Russians. Trump has admitted he wants the investigation shut down. Can the president simply fire him? Trump has stated that Mueller had better stick to his Russia inquiries and not start sniffing around Trump family finances.
Can Trump declare Mueller out of bounds and sack him as he did to FBI Director James Comey? Or would shutting down the Russia investigation be “obstruction of justice”? This a tricky legal question. And its resolution would be messy and bitter.
Constitutional crises are not resolved by special prosecutors or courts
In the end, believe it or not, the people decide.
Why? If Mueller finds wrongdoing by Trump’s team, Congress may move to impeach. But the people elect Congress. And Congress will impeach and remove if the people want that. Bill Clinton survived impeachment in 1999 because the majority wanted him to. The economy was booming and the nation was at peace. He was generally popular. The political ground under Clinton rumbled a little, but then senators voted to let Clinton continue because their constituents wanted him in office.
If the people want Trump removed, he likely will be. The legal mechanisms–impeachment or the 25th Amendment–are just surrogates for the will of the people. If the economy is strong, if North Korea or Iran are neutralized and Trump’s approval rating improves, anything Mueller finds may not be decisive. The people–through their representatives–would probably defeat moves to remove Trump.
But, if things are going badly with Trump’s presidency; say the economy tanks, or hurricane relief falters or, God forbid, foreign foes wreak destruction, things could go differently. Any wrong-doing at all uncovered by the special prosecutor could up Trump’s chances of removal to sky-high levels.
Election day is always just around the next bend. You may see this as a strength of America’s system, as Jefferson did, or a liability, as Hamilton argued.
Citizen is the highest office
Ultimately, the people are sovereign. In the end, the lawyers and media elites must defer to the will of the people. Journalists on MSNBC can’t impeach Trump and those on Fox can’t save him if his campaign team is in fact guilty of collusion with Russia.
What will the backlash be if Trump fires Mueller? Will a Trump-inspired constitutional crisis break the Top Five for historians of the future? Only the people know.
If this post helps you understand American government better, or whetted your appetite for more, won’t you please share?