A Conversation with Benjamin Wittes: On the “LOL, nothing matters” Presidency and the Omnipresence of Politics
Although Benjamin Wittes never attended law school, he co-founded and is the editor-in-chief of Lawfare, a blog created in 2010 that discusses the influence of law on topics ranging from cyberspace to Presidential impeachment inquiries. Wittes is also a senior fellow at The Brookings Institution in the Governance Studies department. In addition to reporting for the Washington Post and the Legal Times, Wittes has also written several books, one of which, entitled Unmaking the Presidency: Donald Trump’s War on the World’s Most Powerful Office, will be released next month.
Did you go to law school?
Nope, I’m a total fraud.
Do you think that background helps you provide a different take on legal journalism?
Well, I think my job is to be as good a lawyer as the best lawyers. And to be as good a journalist as the best journalists. And I fail at both on a regular basis, but that is the job. What I think of as our role—our unique space—is to do legal scholarship and technical analysis at the speed of journalism.
What motivated you to start Lawfare? What’s your favorite part of the job?
Lawfare started as a lark. It was really three friends who were writing together a lot: Robert Chesney, Jack Goldsmith, and me. We had sort of similar philosophical views on a variety of subjects and we wanted a place for kind of less formal more experimental writing.
We started Lawfare as a forum for our own writing. We certainly never imagined that it would take off the way it has taken off. I certainly never imagined it as becoming my job. It was just this little blog we did on the side of our other work. Honestly my favorite part of it has very little to do with my own writing: it is the role that it has been able to play in cultivating a civilized dialogue on very difficult issues from a genuinely ideologically diverse set of points of view.
During President Trump’s impeachment hearings, which testimonies did you find to be the most helpful in cultivating a picture of what happened? Which were the most jarring?
Well, the most jarring is easy: that’s Gordon Sondland, who nobody quite knew what to expect from given that he had given one testimony, kinda revised by letter, and now came in and very cheerfully made some very dramatic claims. So that is certainly the most jarring.
The most meaningful—moving—to me was Fiona Hill’s, but that’s because she’s a longtime Brookings colleague of mine and we’re acquainted and know each other in a way that makes the experience of watching somebody give testimony like that quite different. So I do think the most important testimonies are actually not the testimonies of the individuals; it’s the accumulated account no one individual tells the whole story here the story starts with Masha Yovanovitch and continues through the Fiona Hills and Tim Morrisons and Taylors and George Kents and kind of finishes, but I do think it is actually important to see the whole picture of the aggregate story that all of the m are telling. Rather than [just looking at] Catherine Croft; rather than seeing one as the key witness.
Following the more factual legal elements of the hearing, do you view that what Trump did—essentially exchanging actions with Ukraine in order to gain political benefit, especially in the 2020 election—as bribery? Or do you view it as something else based on the facts presented in the testimonies?
I think the argument that you can cast what the president did as bribery is pretty good. That said, I’m not sure that the entirety of the issue is a bribery issue. One of the components is simply that its illegitimate to gin up fake investigations of your political opponents right and that’s an abuse of power independent of whether it’s accomplished by bribery or whether it’s, you know, just asking him to do it. I could see formulating [a legal argument against Trump] in terms of an abuse of power; I could see formulating it in terms of bribery. Or both, to be honest.
The law is clearly influenced by the politics of the age. Obviously you’ve done a ton of work and research on the law, so, in this political moment, where do you think the law is going given the impeachment hearings and everything that has been happening?
Everybody’s got a million things they would change in the law, and I’m no different from everyone else in that regard.
I don’t think the fundamental problem is the law. I think the problem is you have a kind of “LOL, nothing matters” presidency and 40 to 45 percent of the population is content with that for whatever reason. I’m not enough of a political sociologist to assess the reasons why people don’t actually seem to care, but enough people don’t seem to care so that a kind of “LOL, nothing matters” presidency is not obviously self-destructive. And if you asked me five years ago: “if a president behaved this way, what’s the remedy against that?” [I would have said] that you wouldn’t survive two weeks: you’d get yourself impeached, have a collapse of political support, and that was the assumption. And that assumption turns out to be wrong at least for Donald Trump. That is a very threatening thing, and it’s not a legal problem; its a political apathy problem.
Since these remedies are still available, is it difficult for you to watch this sentiment of “not caring” that you were describing and how that’s almost trying law in a way? Oh, I find it unfathomable. I don’t spend my life getting angry about things, but I find myself very angry about this. Look, as a society, ultimately, everything is politics. Having good laws—having institutions that support and enforce those laws—ultimately has to be supported by a political layer that believes in those things. The tectonic layer that supports those institutions are the hearts and commitments of people at a political level. That’s what prevents us from being any other society with elections and a corrupt use of power on top of those elections. Once you take away the commitment to that at the political level, the rest will fall apart.