Trump, Law Enforcement, and the Return of the Agent Provocateur

Today'a blog appeared on July 26, 2020 in  the International Policy Digest.

There are a lot of problems constitutionally and politically with President Trump sending federal
forces into places such as Portland, Oregon, or Chicago, Illinois allegedly to restore order. Overlooked in most stories are how these federal agents represent the return of the agent provocateur as a tool of politics.

Start with the basics. Trump issued an executive order declaring authority to send in federal agents to cities and states in order to restore order. Constitutionally there are numerous problems here. No one will argue that the federal government doesn’t have the authority to protect its facilities such as courthouses. Inherent within Article II of the Constitution–either section one which vests executive power in the president or section three which says the president shall take care that the laws shall be faithfully executed–one can find ample authority to do that.

However, remember that the U.S. Constitution is a power-conferring document. There is no inherent federal or presidential authority–all of it must be traced back ultimately to some text in the Constitution. Among the powers that the U.S. government does not have is general police power. By that, states have broad authority to enact laws to protect the health, safety, welfare, and morals of the people. The police power is also what gives states the general authority to pass criminal laws and take enforcement actions to maintain law and order. Because of this authority states and, when delegated to them, cities can create police departments.

There is no federal equivalent. There is no “Federales” or national police force in the U.S. as there are in many other countries. Not even the Insurrection Act of 1807 allows for that, contrary to what the president asserts. Any federal crimes or law enforcement must trace back to the Commerce or perhaps another constitutional clause. The U.S. government has no general criminal law jurisdiction or authority, especially at the state and local level. On top of that, the Posse Comitatus Act of 1878 bans the use of federal troops for law enforcement purposes, reinforcing the notion that general policing is an issue for state and local governments according to the Tenth Amendment.

But even though the U.S. government lacks general policing authority, it is possible for them to intervene when requested by states or cities. However, that is not the case with Portland or Chicago. Trump is directing unnamed or marked federal agents to be deployed there, often without the knowledge and certainly against the request of local officials. There is no constitutional authority to do that. Finally, to the extent that these federal agents are simply arresting or roughing up peaceful protesters raises critical First Amendment questions, and if they are questioning them without advising them of their rights, there may also be Fifth Amendment issues. Overall, there are many problems from a legal perspective here.

Of course, Trump’s motives appear not legitimately law enforcement. Post-George Floyd and the riots that occurred, the president is running a redux of the 1968 Richard Nixon law and order campaign, playing on the racial fears and anxieties of whites who saw the race riots of 1967 across the nation. It is also a diversionary tactic to take away attention from his mishandling of the coronavirus and the economy.

But the playbook is even worse. These federal law enforcement personnel are the new agent provocateurs—a person who intentionally encourages people to do something illegal. The term comes from nineteenth-century France and the Soviet Russia period where the government used plains-clothes police to incite the opposition to break the law. This is Trump’s tactic. Take a tense situation such as a Black Lives Matter demonstration and send in plainclothes federal agents to arrest, question, and rough up. Also, do it without local authorities knowing what is going on. The recipe here is to inflame, giving the president a manufactured crisis in which he can show force to appease his base. It is 1968 Chicago, and Mayor Daley all over again, with Trump hoping that the American public will react in the same way and go with the law and order candidate one more time.


Four years ago, Trump declared immigrants to be the enemies from which he would protect us. Now the enemies are internal and like four years ago when he fabricated legitimate immigrants and refugees into caravans of rapists and murders at America’s door, he now is trying to convert legitimate protests into threats on America with agent provocateur.

Trump, the Constitution, and Portland

        There are lots of problems constitutionally and politically with President Trump sending federal forces into places such a Portland, Oregon or Chicago, Illinois allegedly to restore order.  Overlooked in most stories are how these federal agents represent the return of the agent provocateur as a tool of politics.

            Start with the basics.  Trump issued an executive order declaring authority to send in federal agents to cities and states in order to restore order.  Constitutionally there are numerous problems here.  No one will argue that the federal government has the authority to use its authority to protect its facilities such as courthouses.   Inherent within Article II of the Constitution–either section one which vests executive power in the president or section three which says the president shall take care that the laws shall be faithfully executed–one can find ample authority to do that.

            However, remember that the US Constitution is a power-conferring document.  There is no inherent federal or presidential authority–all of it must be traced back ultimately to some text in the Constitution.  Among the powers that the US government does not have is general police power.  By that, states have broad authority to enact laws to protect the health, safety, welfare, and morals of the people.  The police power is also what gives states the general authority to pass criminal laws and take enforcement actions to maintain law and order.  Because of this authority states and, when delegated to them, cities can create police departments.

            There is no federal equivalent.  There is no “Federales" or national police force in the US as there are in many other countries.  Not even the Insurrection Act of 1807 allows for that, contrary to what the president asserts. Any federal crimes or law enforcement must trace back to the Commerce or perhaps another constitutional clause.  The US government has no general criminal law jurisdiction or authority, especially at the state and local level.  On top of that, the Posse Comitatus Act of 1878 bans the US of federal troops for law enforcement purposes, reinforcing the notion that general policing is an issue for state and local governments according to the Tenth Amendment.

            But even though the US government lacks general policing authority, it is possible for them to intervene when requested by states or cities.  However, that is not the case with Portland or Chicago.  Trump is directing unnamed or marked federal agents to be deployed there, often without the knowledge and certainly against the request of local officials.  There is no constitutional authority to do that.  Finally, to the extent that these federal agents are simply arresting or roughing up peaceful protestors raises critical First Amendment questions, and if they are questioning them without advising them of their rights, there may also be Fifth Amendment issues. Overall, there are many  problems from a legal perspective here

Of course, Trump’s motives appear not legitimately law enforcement.  Post-George Floyd and the riots that occurred, the president is running a redux of the 1968 Richard Nixon law and order campaign, playing on the racial fears and anxieties of whites who saw the race riots of 1967 across the nation.   It is also a diversionary tactic to take away attention from his mishandling of the coronavirus and the economy.

            But the play book is even worse.  These federal law enforcement personnel are the new agent provocateurs—a person who intentionally encourages people to do something illegal.  The  term comes from nineteenth century France and the Soviet Russia period where the government used plains-clothes police to incite the opposition to break the law.  This is Trump’s tactic.  Take a tense situation  such as a  Black Lives Matter demonstration and send in plain clothes federal agents to arrest, question, and rough up. Also do it without local authorities knowing what is going on.  The recipe here is to inflame, giving the president a manufactured crisis in which he can show force to appease his base.  It is 1968, Chicago, and Mayor Daley all over again, with Trump hoping that the American public will react in the same way and go with the law and order candidate one more time.

            Four years ago, Trump declared immigrants to be the enemies from which he would protect us.  Now the enemies are internal and like four years ago when he fabricated legitimate immigrants and refugees into caravans of rapists and murders at America’s door, he now is trying to convert legitimate protests into threats on America with agent provocateur.

Young Man Trump: Or the Portrait of a President as a Young Man

Effective presidencies are all alike; ineffective presidencies are ineffective in their own ways. Recounting and explaining why the Trump presidency is ineffective has become a cottage industry.  Two recent books, John Bolton’s The Room Where It Happened and Mary Trump’s  Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man  are the latest of a collection of expose books on Donald Trump that describe a dysfunctional presidency and why. While Bolton describes the ways the Trump presidency is ineffective dysfunctional, Mary Trump offers the reader a psychological portrait of a president as a young person, locating the roots of a troubled presidency in a troubled upbringing where the worst of Donald Trump’s behavior which is presently reinforced by his staff was originally imprinted upon him by his family, and especially his complicated relationship with his father

            Biographies of effective presidents tell the same story.  James MacGregor Burns, perhaps the best scholar on presidents ever tells in Leadership that the mark of all great leaders is a set of skills that include selflessness, an ethical vision, and an understanding of needs and beliefs of their followers.  Simply put:  Leaders put themselves second, the people they serve first, and they exercise power guided by principle.  Others, such as Richard Neustadt’s Presidential Power, locate the core of presidential authority in the power to persuade, with a cluster of similar factors determining effectiveness and greatness in a presidency.  Stephen Skowronek echoes  much of what Burns and Neustadt argue, while also emphasizing historical context  as key to what makes for a great president.  The lessons of history tell us what matters in determining what are the attributes and traits of an effective presidency.

            Yet while effective presidencies share common traits, as Leo Tolstoy nicely stated in Anna Karenina’s opening line “Happy families are all alike; every unhappy family is unhappy in its own way.” Among the worst presidents, James Buchannan, Andrew Johnson, and Richard Nixon there was a unique Hamlet like fatal flaw that doomed them, with the source of their problems located in their personalities and characters.  Erik Erickson’s Young Man Luther was the first in a line of powerful psychobiographies that located adult behavior and struggles in family upbringing  and lessons learned as adolescents.  James David Barber’s Presidential Character applies psychobiography to the study of upbringing to explain presidential behavior.  All presidents have the same constitutional powers, yet some perform better than others and we can locate in family upbringing the source of  why some do what they do and whether they learn the skills needed to be good leaders.

            This is potentially why Mary Trump’s book is so interesting.  She is the president’s niece but she is also a Ph.D. in psychology.   Her book is part psychoanalysis, biography, and yes even self-revelatory.  There is no question she has issues with her uncle and she is part of the larger dysfunctional family she describes in her book.  Her uncle is not her patient and therefore American Psychological Association ethics rules preclude her from offering a diagnosis of him and, even if she did, it would be colored by the conflicts of interest of being related to him.  Yet nonetheless her book offers a psychological and biographical context for understanding the Trump presidency.

            John Bolton is  not the first to tell us that Donald Trump is a self-absorbed narcissist. Trump does not read his intelligence briefings, he makes hasty emotional judgments, ignores advice, and simply is lazy and disinclined to accept advice, criticism, or lean anything about what his job entails.  Had he any work ethic his presidency would have lived up to what his supporters wished and his distractors feared.    Bolton’s book offers no new accounts of the problems within the Trump presidency.

            Mary Trump tells us why.  Reading her book,  we learn two major points.  One,  as quoted numerous times in this essay, Leo Tolstoy’s comment about unhappy families is true—they are unhappy in unique ways. The Trump family into which Donald was born was  unhappy and dysfunctional.  It was a family with an overbearing father Fred who coddled Donald.  It was Donald who learned quickly how to play off people’s weaknesses, how to self-promote and self-indulge, and  lie to achieve what he wanted.  His family reinforced this.  As did first the New York City social and financial circles.  Then  the national media, then the cult he created with the Apprentice.  The message of her book is that father son and sibling rivalries  of Donald Trump’s youth produced the person he is today.  Trump is narcissistic and insecure because of his family.  Had Mary Trump been a Freudian, she could have located Donald’s neurosis in some masculine  competition and insecurity regarding penis size, as evidenced by his famous 2016 debate statement  about his private parts and his need to conquer women.    Stormy Daniels’ calling Donald Trump “tiny” was the comment that most got the president’s goat in the last four years.

            The other major point we learn about Donald Trump is inspired by a quote by F. Scott Fitzgerald’s The Rich Boy where he said “Let me tell you about the very rich. They are different from you and me.”    To which the critic Mary Colum said yes, they are different, “they have more money.”  Mary Trump’s book describes a family of privilege.  Donald, or rather his father Fred, buys his way into schools by hiring exam takers.  He buys his way out of the draft with questionable bone spurs. His father buys chips to buoy Donald’s sinking casinos.  Trump uses money—rarely his own—to buy access, image, and anything else he wants.  Combine a dysfunctional family with economic privilege and what do you get?  As Mary Trump stated in a recent interview, the dysfunctionalism of the Trump presidency is an  outgrowth of the same in the Trump family.   

What Bolton and others describe in the White House is  explained by  Mary Trump’s book.  Donald Trump is James Joyce’s  Stephen Dedalus  or J.D. Salinger’s Holden Caulfield gone malignant  and elected to the presidency.

 

If the US Presidential Election Were Held Today

If the US presidential election were held today polls suggest Joe Biden would be elected.  Not only would it be a landslide popular vote victory but he would win a clear electoral college decision.  Right now the Economist gives  Joe Biden a 93% chance of winning.

            But the election is not today.  It is still nearly four months out.   Surveys or polls are not predictions, they are snapshots in time and are no guarantee of the future.  Additionally, national polls are worthless when it comes to presidential elections.  It is not that they are usually wrong—they did predict Hillary Clinton would win by about two percentage points in 2016 and she did.  But instead the road to the White House is through the electoral college and the only polls that really matter if at all are the ones in the critical swing states they will decide the election.  What happens in Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin is a lot more important than what happens in California, New York, or Alabama.  Despite how much Democrats are salivating, realistically Georgia and Texas, while competitive, are not swing states. At best, forcing Trump to defend these states means less resources for the states really in play.  For Democrats, don’t repeat the mistakes of 2016 and campaign where there is no realistic prospect of winning. 

A lot can happen between now and election days, with it then either being November 3, 2020 (actual election day) or in the case of some states such as Minnesota, when as early as September 19, 2020 early voting  takes place.  Approximately 38 states allow some absentee or early voting, complicating predictions because ballots are being cast over a period of many days or weeks.

Political scientists develop models to predict presidential elections.  Central to the models are presidential approval and national economic performance several months before the election.  Based on these variables Donald Trump should lose.  But these models too are flawed in that they overlook the finery of the swing states and the electoral college and they also seem to ignore the fact that campaigns really matter.   Hillary Clinton should have won  four years ago but ran a lousy  campaign.  In 1988 Michael Dukakis at one time had a 17-point lead over George Bush but lost because of bad campaigning, complacency, and race-baiting  (remember Willie Horton) by the latter.

The point is that four months until November 3, is an eternity.  Four months ago, was mid-March, just before the pandemic  kicked in.  The US economy was at 4.4% unemployment for March, up from 3.5% in February.  Joe Biden was struggling to shake off Bernie Sanders for the Democratic Party nomination and it still looked like Trump was favored to win re-election.  The major issue—beyond Trump himself—was the fallout from the Senate trial and failed impeachment.

Since then everything and nothing has changed.  By that, this election was always going to be about Trump.  Unlike in 2016 where the election was a referendum on Hillary Clinton and she lost because people did not like her, in 2018 and now in 2020 the election is a referendum on Trump.  The pandemic and the economy have and have not changed that.  Yes, they have changed  the election  in that they are now issues and voters are judging Trump on how he is handling both. Evidence suggests his mishandling of them are impacting some support among his base. But they have changed nothing in the sense they both issues are merely surrogates for how voters think or feel about  Trump.

Think about it.  It has taken double-digit unemployment, a record crash of the economy, and 3,500,000 infections and 138,000 deaths to change the political dynamics of the 2020 presidential election.  Without the pandemic and the collateral damage, it has impacted on the economy, Biden might have had little chance of winning. Even  now, while the models say Trump will certainly lose, variables such as  changes in the economy, a lull in the pandemic, a horrible Biden campaign, or a ramped-up on steroids racial appeal by Trump that makes Willie Horton look tame.  And Democratic Party control of the Senate is not certain.

It takes a lot to defeat a sitting president.  Bush lost in 1992 because of a three-way split in the vote with Ross Perot running as a strong third-party candidate.  Prior to that, Jimmy Carter in 1980 lost to Ronald Reagan and in 1976 Carter defeated Gerald Ford.  In both those cases sitting incumbents lost because of extraordinary circumstances (1980 it was  the Iran Hostage crisis and oil embargo and in 1976 the Watergate backlash the pardoning of Richard Nixon). Prior to that it was in 1932 the last time a sitting presidential lost in a general election and that was when the Great Depression brought down Herbert Hoover to Franklin Roosevelt.  Only five incumbents have failed to win a second term.

            Trump is highly vulnerable but this is an extraordinary election.  Partisanship or polarization is so high it is, as noted, taking a national emergency a catastrophe to even begin to melt his base.  Voting in the age of Covid-19 might produce  distorted results that could change the election.  Already the litigation and court fights over early voting or voting rights portend how fragile franchise rights are and how the Supreme Court may impact how the 2020 elections are held.

            If the 2020 presidential election were held today arguably Joe Biden would win.  But it is not being held today and if history tells  us anything, a lot can still change, especially at the electoral college level, between now and November 3.