If the President is incapable of performing the duties of the office to which he was elected, he should be removed.
From the moment President Trump took the oath of office, many of us suspected as much – even as a candidate the President showed no interest in or knowledge of the difficult details of policy, nor a desire to ameliorate his ignorance, preferring instead to spit bigoted lies and snake-oil promises.
More recently, a new book by Bob Woodward and an anonymous op-ed by a senior White House official have confirmed this in devastating detail. In particular, the op-ed alleges that there is a secret alliance of Trump officials in the White House who, in turns and by degrees, seek to frustrate his worst impulses and try to limit the damage he is doing to our institutions.
What they don’t realize is that preventing Trump’s insanity from becoming policy doesn’t protect our institutions – in the long run, keeping the ship of state afloat by flattering the President’s ego but refusing to follow his orders turns the Presidency into a figurehead. When the buck stops nowhere, the damage to our institutions is done whether the orders are carried out, or someone whisks the relevant paperwork out of sight.
Sure, I can contemplate a certain bravery to mitigating the consequences of his orders (by refusing to follow them). But what this op-ed really says to me is that its author (and their compatriots) prefer to use the Presidency as a hot-air balloon for their personal policy agenda instead of using their power to protect the integrity of the office the way the Constitution intended.
When the Founders contemplated the eventuality of an unfit President, they didn’t create a chattering body of unelected advisers to make decisions in his stead – they gave the House of Representatives the power to impeach, and the Senate the power to try all impeachments.
Implied in this concept of impeachment is the radical notion that the President should be held responsible for their decisions. In turn, it is implied that the President should actually be allowed to make decisions.
Yes, there have likely been times when the worst impulses of every President needed to be checked in quiet ways – but when it happens all day, every day, such conduct ceases to be patriotic stewardship and starts to resemble the cynical calculus of a cover-up for the “greater good”. The “Cabinet Resistance” may be helping in small, short-term ways – but at the end of the day, the right thing to do is call bullshit. If the President is incapable of performing the duties of the office to which he was elected, he should be removed. He is. And we should.
Being afraid that hyphenated identity is more a force for division than unity misunderstands both the intent of the ones asserting that identity, as well as the status quo. In a nation where racism and xenophobia continue to perpetrate systems of disproportionate violence and denial of opportunity against minorities, hyphenated American identity has been a tool for Footnote Four minority groups not to reduce or qualify their American-ness, but to insist on the fullness of it. It’s an argument for a bigger definition of what being American means, and who gets to claim it.
To some extent, it’s the same mistake that people make about Black Lives Matter. Saying “Black Lives Matter” doesn’t mean other lives matter less – it’s a rallying cry to call attention to the ways our nation’s culture and policies have intentionally targeted and destroyed black lives because of their blackness. The way to fix this isn’t to insist that minorities drop the hyphenate when they describe who they are. The real solution, the hard solution, is to foster a culture of empathy and solidarity that has a clear-eyed view of history, but also incorporates the complexity of identity with the shared goal of working diligently toward the perfection of our union.
I wanted to take a minute to highlight the work of trans activists across the country through a short anecdote:
Today, I had my first infraction ticket trial in many months. My client was a young transgender woman who is currently experiencing homelessness but working with Safe Place for Youth (SPY) to find housing and a job. Left unaddressed and unpaid, this ticket could accumulate heavy fines and/or result in a pedestrian warrant against her, harming her ability to find housing and employment, and supplying a pretext for discrimination from service providers, government employees, and law enforcement officers.
The court documents accusing my client of smoking a cigarette in a prohibited area had her legal, or dead, name, in bold print across the top. As I stood at my desk, preparing to draft a motion asking the court to dismiss my client’s case, I pondered names and pronouns. My client had already expressed to me the first name she preferred to go by, as well as her preferred pronouns (she/her), and my first instinct was to use them in the documents I was preparing to file.
But then, as I typed away, adding footnotes, and citing to letters from her case manager and statistics about LGBT homeless youth, doubt crept in. After all, these were legal documents, and conforming my writing to my client’s legal name and gender would be a foolproof way of avoiding technical difficulties later.
Moreover, I didn’t know whether the judge or, particularly, the police officer I would be negotiating with at trial would be sympathetic to a client they knew was trans. In most of these ticket cases, which involve strict liability statutes and everyday conduct (blocking a sidewalk, smoking, having an open container of alcohol), the best or only play an attorney has is to appeal to the sympathies of the court and the police – if either was transphobic (or simply ignorant), I risked getting a worse outcome for my client by disclosing their gender identity.
The principle that ultimately made the decision for me is at the root of legal practice – while the lawyer is ceded authority over matters of pure strategy, the client is ultimately in charge of all decisions which involve the invocation or waiver of their constitutional, statutory, or common law rights. And while no, my client’s real name is not her legal name, and she is not legally female, it seemed to me just and proper and close-hewn to the idea of lawyer-as-advocate to proffer the name and pronouns the client wanted to be known by to the court and the police officer.
In the Wild West of infraction, or traffic court, the defendants, most of whom stand accused of things like speeding or running a red light, are given a chance to negotiate with the police officer that cited them before the case goes before the judge. I generally try and find my client’s citing officer a little early to beat the rush, and to avoid eavesdroppers. Putting on my most winning smile, I shook the officer’s hand and ushered them out of the courtroom, making the usual small talk about their morning – LAPD Officer Ruiz had just gotten out of a CPR training, and seemed in a good mood. Better yet, he remembered me from a previous case.
As I started to make my client’s case, I began by identifying them as “[legal name] [last name], who prefers to go by [real name] – her ticket came to me through Safe Place for Youth.” Internally, I braced myself for the officer to push back, to assume that I had gotten it wrong, or worse, laugh or show disgust. But to my surprise, Officer Ruiz said, “Oh, ok – [real name],” and proceeded to use the correct pronouns for the rest of the conversation. We agreed that it would be best if the fines and fees on the case were reduced to zero in light of the circumstances, and went to the judge to ask his approval.
And again, to my surprise, the judge pro tempore filling in for the usual Commissioner, an older white man with a shock of thin, frizzy hair in a ring like a monastic tonsure, leaned forward with his chin on his knuckles as I told him my client’s story, and crinkled his mouth sympathetically when I said, “My client, [legal name] [last name], who prefers to go by [real name], is a young transgender woman experiencing homelessness.” No side-eye of judgment, no confused follow-up questions, no surly proclamations starting with “Counsel, I must say…”. Just empathy, and an almost perfunctory attitude – because of course he would reduce the fines to zero. As if there was obviously only one right choice, a conclusion I agreed with but was nevertheless shocked to see the court reach with such compassionate ease. I walked into court expecting a battle, but it turned out to be one of the easiest infraction cases I’ve ever done.
Just a few years ago, a scenario like this would have been impossible. And indeed, today, trans people remain at disproportionate risk of harassment, (lethal) physical and sexual assault, and unjust treatment by and within our criminal justice system. But however incremental the change, none of it would have been possible without the relentless work of trans activists bringing visibility to their existence.
As Janet Mock once said,
There’s power in naming yourself, in proclaiming to the world that this is who you are. Wielding this power is often a difficult step for many transgender people because it’s also a very visible one.
Without trans people able and willing to take those difficult steps to publicly live internal truths, it would not be possible for a police officer and a judge to hear that a defendant is trans and react with understanding and nearly instinctive compassion. Let’s keep saying it so we all remember: trans activists’ bravery and passion continue to make real change, one small justice at a time.
My last day as an Equal Justice Works Fellow was September 27, 2017. Since then, I’ve been writing this post in fits and starts to try and sum up the experience. Part of the difficulty is that strong opinions and emotions tend to make maudlin and trite things bubble up in the writing, and right now every thought I put down on the page feels imbued with passion and urgency and even anger. I think the best way to mitigate these risks is to begin with old news and ease into the new things. For those of you who may be reading about my work for the first time:
Hope Hicks has left the building. And judging by the coverage of her resignation, one would think that Mary Poppins herself had, parrot-pommeled parasol in hand, soared out of the West Wing and over the Potomac to wherever fresh-faced, kindly governesses come from. Take this morning’s New York Times for example. The image of Hicks it, along with many other publications, cultivates is of a faithful if long-struggling squire who, through dutiful service to her mercurial feudal lord, suffered too long and too much for any person to bear – tearfully boarding a plane to a fog-embraced colonial in Connecticut where, her labors complete, she will at last find rest.
What a bunch of bullshit. I have no reason to doubt Ms. Hicks’ work ethic, nor her loyalty to the President. And her uncharacteristic ability to do her job without becoming the subject of lurid headlines (until the end) is certainly commendable, albeit by this White House’s practically subterranean standards of conduct. But while hard work and fidelity may be virtues in a vacuum, I’d like to think that when we judge those qualities in real life, context matters. And when someone chooses to devote such energies to a man like Donald Trump, I think the public and the media has an obligation to judge their character in light of the object of its favors.
Ms. Hicks, like every other member of the Trump administration, has chosen to remain by his side through every scandal and crisis, from the “Access Hollywood” tapes to today. Moreover, she has been an active participant in the trough of lies the White House spews on a daily basis, denying any and all allegations which could remotely tar the President’s reputation. She was a critical part of the Air Force One meeting where the President formulated a transparently false statement about a Trump Tower meeting between Russians and top campaign officials, and most recently told the House Intelligence Committee that she had told “white lies” on the President’s behalf, an admission which ultimately precipitated her resignation.
As Hicks has intentionally cultivated a low profile and privileged fidelity to the President and his agenda over whatever moral qualms, if any, she may have experienced in her time on the campaign trail and in the White House, we must infer that she is either a private demagogue or a thoughtless sycophant. Judging from the only(?) interview she has ever given, to Forbes magazine, where her answers to even the slowest of softball questions are babbling, perky pablum that makes the back of a Dr. Bronner’s soap bottle look like Hemingway, I’m leaning towards the latter.
In either case, Ms. Hicks has not earned the sympathetic eulogization which has followed her departure from the White House. Unlike other members of the Cabinet, such as General Mattis, there is no indication that her stint in public service was out of a sense of duty or obligation toward her country, its laws, or its Constitution. Nor is she shackled to him by family bonds. Her service was entirely volitional, and her loyalties devoted to Trump alone, her dream client (“There’s nobody else”). If anything, her blind devotion to our 45th President has earned the opposite treatment, not least because of her boss’s (and apparent boyfriend’s) treatment of women. As Madeline Albright said, “There is a special place in hell for women who don’t help other women.” When she had to choose, Hicks decided to stand by one man who walked in on naked underage models, and another who punched his wives in the face.
People who are valueless – or who subordinate their values to partisanship or tribal loyalty or fame or riches – are scarcely better than the Steve Bannons of the world. Her silver gel pens and fresh-baked cookies notwithstanding – by sins of commission and omission, Hope Hicks has revealed herself to be one of these. When the dust of the Trump administration settles and a hundred hot takers open laptops to write its obituary, she should be remembered not as a long-suffering aide-de-camp, but rather as a vapid automaton who ducked and dodged and lied and schemed to enable the embrittling of American democracy by one of its worst Presidents.