The only check-and-balance that actually matters

Welcome to Doomsday Scenario, my regular column on national security, geopolitics, history, and—unfortunately—the fight for democracy in the Trump era. I hope if you’re coming to this online, you’ll consider subscribing right here. It’s easy—and free:

The destruction this week of the East Wing of the White House has been uniquely shocking, a physical manifestation of what Donald Trump is doing to our presidency and our country — the excavators and heavy equipment demolishing a 120-year-old literal piece of American history feels in many ways a microcosm of so many Trump controversies. It came out of left field, with no real warning or public debate, no permissions asked or given, to serve Donald Trump’s personal whims and vision of building an insane outsized gilded Kremlin-esque ballroom, was done contrary to the administration’s promises (“It won’t interfere with the current building.”), and involves deep deep corruption, as the construction is being funded outside normal appropriations channels, purportedly by some opaque set of “donations” from some unknown mix of companies and individuals who have been promised who-knows-what in exchange.

It feels personal in some ways, like someone is taking a wrecking ball to America itself. And it feels like another failure of the American system that someone can destroy an entire wing of the White House without notice.

Time and time again this year, I’ve been thinking about the failure of our system of checks and balances.

It turns out, in the end, that there’s only one check and balance that actually matters: Good character. Everything else in a constitutional system follows and relies on that simple foundation.

I’ve spent the last twenty years covering national security and have, over the years, interviewed or met almost every senior decision-maker in the intelligence community and federal law enforcement from the 21^st century — FBI, CIA, NSA, and ICE directors, CBP commissioners, the directors of national intelligence, and most of this century’s attorneys general, DHS and defense secretaries and secretaries of state, not to mention dozens of sub-Cabinet officials — the deputies, under secretaries, assistant secretaries, and deputy assistant secretaries who make up the day-to-day decision-making at most levels of government. Many I’ve gotten to know quite well. Some are good friends.

Prior to January 2025, almost to a person I trusted that they took seriously the rule of law and their constitutional obligations under their oaths of office. I didn’t always agree with their decisions and sometimes debated with them the morality underlying their decisions, but never once doubted that there had been a robust discussion and debate about the legal and constitutional obligations behind the scenes before they made their decisions.

Those officials — across administrations and regardless of whether they were Republicans, Democrats, or nonpartisan apolitical civil servants — abided by norms of governing and participated willingly (albeit sometimes grudgingly) in oversight responsibilities by the judicial and legislative branches, understood checks and balances, cared deeply about the appropriations process and whether they were spending money in the manner congress had intended, and jumped through required ethics hoops. Many went out of their way to abide not just by the spirit of ethics laws but the actual letter thereof — I remember FBI agents refusing to accept copies of my book on the FBI, as de minimis and professionally useful a gift as any, because it violated their ethics guidelines.

The bottom line was that all of these officials believed in their oath of office, codified under 5 U.S. Code § 3331, and recognized that their highest duty was to the Constitution and not a person: “I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” 

Much of this didn’t vary much across administrations. Avril Haines, who served four years as President Biden’s director of national intelligence, kept on her wall the IC’s ethics principles originally signed by her predecessor Gen. James Clapper, which had stayed in force through the first Trump administration and then through Biden.

The courts even have a phrase for all of this: “The presumption of regularity,” the idea that you could in dealings with the federal courts you could trust that prosecutors and government lawyers were operating in good faith.

Today, the United States is being ruled by a regime that cares almost nothing at all for the rule of law and the norms that have guided the US government for generations; legal and oversight structures are being dismantled left and right. Ethics and conflict-of-interest violations are no longer worth the paper they’re written on. (The other super crazy corrupt story just from the last 24 hours: Trump wants the Justice Department to pay him $230 million for its prosecutions of him, a decision and sum that will ultimately be up to men who just months ago were his own personal lawyers. What?!) 

The “presumption of regularity” and good faith is simply gone; “60 Minutes” featured an in-depth look this week at work done by Ryan Goodman and others at Just Security that found dozens of instances — more than 35, in fact! — where federal judges have doubted the good faith of Justice Department lawyers appearing on behalf of the Trump administration. At the CIA, the deputy director has gotten rid of the agency’s acting general counsel, taking on that role for himself. (You know what they say about a lawyer who represents himself: He has a fool for a client.)

In recent weeks, I’ve sat through conversations about FISA and Section 702, normally seen as vital intelligence and surveillance powers that require regular review and reauthorization, as well as about the future use of autonomous weapons, and both conversations have quickly wound themselves back to the same root: Everything relies on that underlying trust of the individuals making the decisions inside government. Do you trust that they believe in and take seriously their oath of office? 

If yes, there’s any matter and measure of power that we can grant our government, because we can trust it’s constrained and used carefully; if no, then that’s the whole ballgame. 

Whether powerful government surveillance tools are wielded by people who care about the rule of law or by a lawless rogue agency like Trump’s ICE turn out to be entirely different conversations —the understanding that you can’t trust the people in power forever in all circumstances is precisely the reason why organizations like the Electronic Frontier Foundation and ACLU have been so rightly dubious of the safeguards put into post-9/11 programs, fearing that someday they will end up in precisely the hands of people like Tom Homan.

It’s an entirely different situation if the conversation about autonomous drones is centered around an administration with a robust legal regime that cares about the role of Congress in warmaking and the international rules of warfare — or an administration that is just making up powers to launch an illegal war targeting innocent Venezuelan and Colombian fishermen and inventing new “terrorist” designations for domestic groups, like antifa, a power that doesn’t exist to target a group that doesn’t exist.

And, as our country has experienced this year’s “constitutional crash,” what I’ve repeatedly called the ER-style flat-lining of the healthy biorhythms of our 249-year-old constitutional order, it matters a great deal whether the people elected to Congress and appointed to the Supreme Court are willing to exercise their oversight and check-and-balance responsibilities. 

It matters a great deal whether you have congressional leaders who care about the Constitution and their responsibilities as a co-equal branch of government to hold the excesses of the executive to account, a la Sam Ervin and Howard Baker or even Mitt Romney, … or you have moral cowards like Mike Johnson and John Thune who care first and foremost about serving a party leader and his personality cult. It matters whether you have justices on the Supreme Court who believe in the court’s rule to uphold precedents and established law … or you have partisan hacks like Brett Kavanaugh and John Roberts who see their role as deciding the politics first and then backing into the law, Calvinball style. As Justice Jackson dissented this year, “This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this administration always wins.”

For generations, we have been saved from these fates and uncertainties because voters chose leaders of both parties with good character who, in turn, appointed people of good character, who, in turn, were constrained by a professional and nonpartisan civil service of good character that took seriously their oaths to serve the Constitution and not an individual. 

That most basic protection was lost last year when voters returned Donald Trump to office. And what Donald Trump internalized early on was that our government by norms was for sisses. Most of what we think of as the functioning of the US government turns out to be norms, not laws — and the laws aren’t very powerful if you don’t care about the fear of breaking them. (Look at the video Kristi Noem is playing at TSA checkpoints across the country, as clear a violation of the Hatch Act as there ever has been.) His very elevation and return as president violated the one check-and-balance that the Founders didn’t write down: Be a good, caring person.

Once you elect or appoint someone who has no moral core — who then appoints people with no moral core and fires those who do — nothing else in the system of checks-and-balances turns out to matter. 

If you step into the White House as president thinking it’s your own house — not the people’s house, not a national treasure you’re inheriting for four years, handed down across centuries and generations by the 44 men who have lived there before — it turns out that there’s not really anything that can stop you from tearing down the literal White House if you really want to. What’s stopped the previous 44 is that none of them would have ever dreamed of such a thing in the first place.

GMG

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