When he first ran for the presidency in 2016, Donald Trump promised voters all sorts of things that worried even rock-ribbed conservatives who might otherwise have supported his candidacy. He pledged, for instance, to “open up the libel laws” so that newspapers would be legally liable for criticising him (unconstitutional). He called for a national stop-and-frisk policy (unconstitutional) and argued that US citizens accused of terrorism should be tried in military tribunals (also unconstitutional). He advocated for torture of terror suspects and the targeting of their families (unconstitutional). He said he would push to revoke birthright citizenship from the children of undocumented immigrants (unconstitutional) and ban all Muslims from entering the country (unconstitutional) and create registries for Muslim citizens (unconstitutional). He also pledged to use his Justice Department to investigate Hillary Clinton and “lock her up” as well as his other political enemies (you get the picture).
The National Review, one of the nation’s flagship conservative journals, was so worried about these and other lawless promises that it published, in February 2016, a feature titled “Conservatives Against Trump,” in which prominent public intellectuals on the right called out the candidate for—among other things—his contempt for the constitution and the rule of law. But Trump was elected anyhow. Amid the immediate shock of the result, David Remnick at the New Yorker declared it “nothing less than a tragedy for the American republic, a tragedy for the Constitution… a test of the strength, or the fragility, of American institutions,” and maybe even “the way fascism can begin.”
The rule of law is a curious thing. It is made up not only of the skeletal legal rules, the ability of the courts and other authorities to enforce them, but also a range of norms, precedents and assumptions—the tissue, ligaments and nerve endings that hold those bare bones in place. These too are, in practice, essential to checking the caprice of brute power, and ensuring justice is pursued without fear or favour. Had the transition lasted longer than a couple of months, there might have been an interesting discussion among conservative and liberal critics of Trump about where the threat would come from—might his White House literally refuse to do the courts’ bidding? Might it instead subvert or bully those courts? Or might, in the end, all the sound and fury of the campaign trail be seen off by America’s trusty old political culture and constitution?
Lost in the frenzy
Before long, however, most commentators, and not just on the right, shelved discussions about the threat to the rule of law as theoretical. There was, after all, a frenzied tide of Trumpian events to deal with. The issuance of what was widely called the “Muslim Ban” the first week after Trump took office was both an attack on the constitution and, when it was enjoined in the courts, an attack on the federal judiciary. But protesters weren’t arrested, newspapers weren’t shuttered, and the courts still seemed to count in the sense that the saga was playing out through their rulings and appeals. Conversations about legal abstractions became less urgent than conversations about, say, the attempted repeal of the Affordable Care Act.
Two and a half years on, discussions about Trump’s assault on the Rule of Law proceed along two separate tracks. The sunnier of the president’s critics like to argue that system has basically worked—that the courts have been a bulwark against the worst illegal actions of this president. It is beyond dispute that the Trump administration’s staggering win-loss record in the federal court system is unparalleled. The average president prevails about 70 per cent of the time in its cases before the federal judiciary; Trump, by contrast, appears to have lost about 70 per cent of his cases according to the most recent tabulations of the Washington Post. That is a staggering statistic, reflective of a federal bench that is unimpressed with slapdash changes to the law and shoddy lawyering deployed to defend it.
"Even if Trump is a one-term president, the judges he has already appointed will serve for decades"
Exhibit A for the proposition that the rule of law is alive and well came in late June, when the US Supreme Court—by a 5-4 margin and with Chief Justice John Roberts, a staunch conservative, joining the court’s four liberals—refused to allow a controversial new question to appear on the census that would have asked for the citizenship of respondents. The census matters, not only because the Constitution requires it, and it ensures that the government knows how many people live within its borders, but also because the results are used to allocate Congressional seats and to determine how federal monies are spent. The government’s experts claimed the question would substantially depress minority response rates and was not the best mechanism for counting. Meanwhile, the Commerce Secretary claimed, falsely, that he added it to better enforce a voting rights statute, but ample evidence showed that was not the real reason for the addition of the question.
The Chief Justice, while indicating that he was inclined to defer to the Commerce Secretary’s authority to add such a question to the census, seems to have balked at what he deemed to be the pretextual fashion in which the addition of the question was justified, writing that “the evidence tells a story that does not match the explanation the Secretary gave for his decision.” Suffering such a major loss on the census case—the biggest case of the year in some respects—gave many Americans reason to hope that Trump’s assaults on the courts and the law are going to be held in check by the federal courts.
But that is only part of the story. Because—and here comes the alternative, darker discussion of Trump and the law—the federal judiciary is not a static thing. Trump has been remaking the federal bench faster than any president in modern history. As of this writing he has seated 123 judges, including two Supreme Court Justices to the federal courts, meaning that fully one-fifth of the federal appeals court bench are already Trump-appointees. Many of these judges are remarkable for their youth (some in their 30s), their extreme advocacy work for anti-abortion and anti-LGBTQ causes, and their lack of any meaningful judicial experience. But the Republican-controlled Senate, doing away with centuries-old norms around judicial nominees, have approved all but a few of them for life-tenured positions.
Some of the nominees would never have survived vetting by the American Bar Association, a practice which has been junked, or a longstanding tradition called a blue-slip where home-state senators could override a nomination they opposed, which has also been scrapped. To the extent that they lack the high standard of legal professionalism of more traditional nominees, they are also likely to lack the professional independence that judges rely on to uphold the rule of law. No matter. They sail through confirmation hearings in large batches. This remaking of the federal judiciary on a massive scale was one of the few campaign promises on which Trump has surpassed all expectations. And for voters whose single-minded preoccupation was the reversal of the abortion rights defined by Roe vs Wade, this accomplishment alone will redeem anything else he has done. If enough of them are motivated to turn out for him next year, he could have many more years yet of reshaping the American bench. But even if he were to be a one-term president, the judges he has already appointed will serve for decades, long after the Trump presidency comes to an end.
"Where Trump has been most destructive in the past two years has been in the realm of norms, not law"
But the real worry here is for the future. Those who have been horrified by Trump’s illegal so-called “Muslim ban,” his illegal census question, his illegal assault on the so-called “Dreamers”(immigrants who had entered the US as children) afforded legal status under President Obama, and his swift changes to the asylum rules for those seeking to enter the country legally, have been heartened by a near-universal failure to effectuate most of those goals in the federal courts. Even the long-litigated travel ban—which erected barriers to travellers from almost exclusively Muslim-majority countries—prevailed in the Supreme Court last summer only after having been struck down by one federal court after another, and then being rewritten and revised twice by the administration, so as to remove some of the most egregiously unconstitutional elements.
The first—soothing—account, in which the courts remain the bulwark against the worst lawlessness of the Trump era, was bolstered this summer in a single week when federal judges put a halt to the southern border wall Trump had declared a national “emergency” to get built, stopped new asylum rules that would have gone into effect in mid-July, and removed that citizenship question from the 2020 census. But the alternative—darker—version of the same story holds that as Trump judges take their places on the federal bench, jurists who once bolstered the rule of law will be replaced by those who begin to undermine it. There is already reason to believe that in the abortion context, and in a case seeking to put an end to the Affordable Care Act, Trump judges are newly willing to unsettle established precedent faster than anyone would have expected.
And this brings us back to the question of norms. Because just as the Republicans in the United States Senate have been willing to shatter longstanding norms in order to pack the federal bench with younger, less qualified and more ideologically-driven judges, so too has this president been willing to violate what used to be immutable norms around the rule of law. When Senate Majority Leader Mitch McConnell refused to hold hearings for Merrick Garland, Barack Obama’s pick for a Supreme Court seat that he was entitled to fill before the 2016 election, Senate Democrats could not claim that he was breaking a law. It was merely a norm, an agreed-upon custom, a 200-year old bargain, that allowed for Senators to confirm a president’s pick for the Supreme Court. Senate Republicans changed that norm, and when questioned about it, their response was that they were doing so “because we can.” They held a majority of seats in the Senate. This was about power, and not the rule of law.
Where Trump has been most destructive in power has likewise been in the realm of norms, not law. And there is no supreme court of norm-enforcement in the United States. Until Trump came along, we didn’t see regular presidential attacks on the free press, including the refusal to pursue the truth about the death of Jamal Khashoggi, a US-based journalist and Washington Post columnist, that even the CIA concluded was ordered by the Saudi crown prince. Until Trump came along, reporters were not denied access to White House press briefings because the president didn’t like their journalism. Until Trump came along, those press briefings happened with some regularity. The list of areas in which Trump has attacked the rule of law by twisting norms without actually breaking formal laws is almost too massive to comprehend: refusing to share his tax returns despite a campaign promise that he would do so; refusing to have Senate-confirmed agency heads; declining to divest himself of businesses that benefit from foreign donors; appointing close family members without experience or proper security clearance as senior advisers; holding secret meetings with Russian President Vladimir Putin for which there are no formal records; turning a longstanding 4th July event on Washington DC’s mall into a militarised campaign rally, featuring the president, with VIP tickets given to Republican donors to hand out.
And those are seemingly trivial norms-violations compared to the catastrophic attacks on Trump’s own Justice Department and Robert Mueller’s probe into Russian election interference and the obstruction of justice around that probe. They are also trivial norms violations compared to the open firing of James Comey as FBI director, or the request—as revealed in the Mueller Report—that Trump’s White House Counsel, Don McGahn, lie to cover up unlawful presidential demands. The mere decision by the White House to ignore Mueller’s irrefutable finding of Russian election tampering, or to take seriously the likelihood that it will happen again, a monstrous attack on national security and voting integrity, is itself a norms violation of the first order.
The Trump Administration’s unprecedented claim of executive privilege to block all Congressional oversight, and the refusal, at Trump’s behest, to respond to any Congressional subpoena, is also a staggering violation of the basic norms of liberal democracy. Multiple Trump campaign members have been indicted for a range of improprieties. Trump’s longtime personal lawyer paid hush money to a porn star during the campaign, allegedly to cover up a rumoured affair.
These activities and myriad others are first and foremost violations of norms, although some also create a case for obstruction of justice. Courts are now jumping into these fights in order to determine whether Trump will have to release tax returns he has shielded, and whether banks will have to release financial details Trump has tried to suppress. But for the most part, we have seen Trump performing on a large scale the very same mode of governance modelled by the Republican Senate before his election: do maximal damage to norms, and wait for the opposition to try and stop you by legal machinery that is both slow and cautious by design.
Today, many Senate Democrats are in a defensive crouch about whether and how to stop the erosion of these largely soft norms on which all good governance must depend, and in which much of what we call the rule of law consists. These Democrats are fighting about whether to impeach the president or instead concentrate on the 2020 election, while White House staffers decline to show up to testify before congressional committees. White House Adviser Kellyanne Conway’s repeated violations of the Hatch Act, a federal law barring government officials from engaging in partisan advocacy, were so numerous and egregious that last month a federal Office of Special Counsel recommended that she be removed from her advisory role. When she was asked about why she refused to comply with the strictures of her office she replied, “Blah, blah, blah. … Let me know when the trial starts.” The president defended her by saying she had the right to speak freely.
Lawsuits are proceeding on claims that the president continues to be enriched by foreign and domestic emoluments or financial benefits to his businesses, ethics lawyers warn that he continues to allow his personal hotels, golf clubs and other properties to benefit from donors and foreign lobbyists seeking to curry favor. Yet another probe seeks to determine how monies spent for inaugural events continue to be unaccounted-for.
Meanwhile, independent watchdog agencies bring lawsuits. House Democrats launch investigations. Lawyers and judges fulminate that none of this is ordinary, or appropriate, or good for constitutional democracy. But as yet, the daily assault of norms-violations continue, with periodic checks and infrequent retreats, as Americans wonder collectively what is to be done.
To this point I have scarcely mentioned the situation at the southern border, a human rights catastrophe not entirely of the president’s making, but undeniably accelerated by a “zero-tolerance” family separation policy that was put into place by the Trump administration, while top cabinet officials repeatedly denied that the policy existed. President Trump continues to claim this was an Obama policy, and fact-checkers go blind attempting to explain why that is not the case. Asylum rules have been hastily rewritten, aid to central American countries withdrawn, children separated from family members and held in intolerable conditions for weeks without end. In sum, nobody knows what happened—indeed in many respects what is still happening—at the border or why.
With fear and favour
Perhaps this, then, is the fullest explanation of what has happened to the rule of law under President Trump: institutions that once operated on basic principles of agreed-upon legal fact and discoverable truths have all gone wobbly.
Such post-truth governance could be the real legal legacy of the Trump era. Indeed, as I write these words, the US Supreme Court has said that the citizenship question may not appear on the 2020 census and Trump’s Justice Department has conceded that it will not—that the census will go to the printers without the question. And then Trump himself announced, by way of Twitter, that “the News Reports about the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect, or, to state it differently, FAKE!” He added that the Trump Administration is “absolutely moving forward” with the census question, implying that his own Justice Department had lied the day before. Government lawyers had to explain why a case that had been conceded was on again, without any warning that it had happened. The paradoxical postmodern spectacle in front of us would might seem to be a president claiming that his administration will break the law, or overrule the Supreme Court even though it probably won’t. But it might. That is not a good look for the rule of law, as a general proposition.
But will the president ultimately abide by the ruling of the Supreme Court or won’t he? Unknown. This is not the first time Trump has declared that he will not be bound by a judicial ruling. In addition to the actual violations of law, in addition to the multiple violations of soft norms, the body blow to the rule of law lies in the shattered public confidence in public institutions. By loudly insisting he is free to ignore the law, even when he doesn’t actually break it, Trump certainly weakens its spell, preparing the ground for the day where its writ ceases to run.
"The real body blow to the rule of law lies in the shattered confidence in public institutions"
Who, voters will reason, was lying this week? The Justice Department? The media? The president? The courts? No matter what the answer, the president wins each time chaos triumphs over fact. The First Amendment protects journalists by name. Yet Trump decries everything he does not like to read about himself as “Fake News.” It’s working. Public confidence in the press continues to plummet under Trump. The constitution created three independent and coequal branches of government. Trump routinely derides the independent judiciary and the Congress. It’s working. Public confidence in government as a whole continues to drop. Trump has shattered public trust in the FBI, his own Justice Department, his national security apparatus, and his intelligence agencies. By repeating unsubstantiated claims of millions of fraudulent voters who have stolen elections, he undermines confidence in the franchise. Even the aims of that census question—designed to depress minority response rates to the census in urban areas, and through that ultimately minority political representation—can be achieved by whipping up noise and minority suspicion around the whole census process, with or without the question itself ultimately being printed on the form. Threats of immigration raids and a repeal of DACA, the act that gave protection to the Dreamers, already mean that non-citizen residents have become ever more fearful of participating in the instruments of democracy. By insisting that police officers should be violent toward criminal suspects, Trump inflames public suspicion toward law enforcement. By insisting that border officials should be brutally violent toward migrants, whether they arrive legally or illegally, he foments mistrust toward border officials.
These moves are not necessarily calculated or deliberate, but the cumulative effect has been to create a nation in which citizen mistrusts citizen, and everyone mistrusts the legal institutions that would otherwise be trusted to enforce the law.
When we look for evidence of erosion of the rule of law, it is not necessarily to be found in the “Muslim ban,” or the new anti-abortion regulations, or the big showy policy changes, many of which will be halted in the courts. The erosion of the rule of law is both much larger and far smaller than any of those big-ticket actions. It is happening because the crash barriers of constitutional order as anticipated by the Framers—a free press, an independent judiciary, a congress jealous of its own prerogatives, independent government agencies—have lost public trust. The very nature of language and truth have become confounded and confused. Far more worrying than any single cruel policy or a host of bad life-tenured judges, will be the lasting Trumpian legacy of a public that no longer believes in rules, in laws, or in the soft tissue of democracy itself.