This world view has deep roots in Trump’s campaign and administration.
By Liam Brennan, J.D. / 09.10.2018
Former Federal Prosecutor
A day after President Donald Trump berated his attorney general on Twitter for indicting two Republican congressmen, news broke of an “administrative coup d’état” taking place inside the White House. The following afternoon, a senior official penned an op-ed in The New York Times, in which the author claimed to be part of a “resistance” inside the Trump administration. This stunning series of events are more than just an outgrowth of Trump’s impetus personality or toxic management style — they are symptoms of a breakdown in the rule of law, a danger that threatens both Trump and everyday citizens alike.
The rule of law is the principle that all people and institutions – whether private actors or government representatives – are accountable to laws that are publicly promulgated, enforced equally and adjudicated independently through a series of well-established procedures. At its founding, the Framers saw America’s unique advantage as being an “empire of laws” unlike the kingdoms of despots that ruled the Old World. Justice was to be doled out by deliberate and dispassionate courts and government was to be run according to certain rules free of the machinations of royal courtiers. The rule of law was so fundamental to American governance it manifested itself in multiple ways – the right to impeach the president and other federal officials, removal of the president by cabinet members, the right to indictment by a grand jury before trial on felony charges, and the prohibition against evidence designed to inflame a jury, among others. Adherence to the rule of law has been, at times, patchy (see: America’s history of lynching, indefinite internment in Guantanamo Bay, etc.), but it has always been an ideal government officials at least pledged to strive for.
Trump’s tweets last week were a clean break with that tradition. In them, he argued that the Department of Justice should consider the political affiliations of possible defendants before bringing criminal charges, saying, “Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time.” Both early Trump supporters, Rep. Chris Collins (R-NY) was charged with insider trading and Rep. Duncan Hunter (R-CA) was charged with using thousands of dollars of campaign funds for personal use. After firing off this tweet, Trump then suggested that Democrats are now allied with Sessions because he is helping their electoral chances. In doing so, Trump promoted the motives of what former Attorney General Robert Jackson described as the bad prosecutor – someone who will pick defendants that “he thinks he should get, rather than pick cases that need to be prosecuted.”
This world view has deep roots in Trump’s campaign and administration. Throughout 2016, Trump publicly called for the jailing of his opponent- a once inviolable norm. Michael Flynn, a retired Army general, led crowds in chants of “lock her up.” So did ex-U.S. Attorney, Chris Christie. Even Jeff Sessions appeared to enjoy a good “lock her up” chant during the race.
At the Republican National Convention, Christie – speaking “as a former federal prosecutor” – took Hillary Clinton through a mock trial before a ravenous crowd and a national audience watching on television. Inciting the convention-goers to declare Clinton “guilty,” Christie comfortably slipped from governor to demagogue. As attorney general, Sessions barely suppressed a chuckle when high school students started chanting “lock her up” during one of his recent speeches. Rather than take the time to teach them about rule of law and criminal procedure, Sessions could only mumble, “Lock her up … I heard that a long time over the last campaign.”
But it is the president who has made undermining the rule of law an art form. He has stated to reporters that he believes the attorney general’s role is to protect the president from criminal exposure. He has implied to the FBI director that he can order him to investigate specific allegations to prove they are lies and claimed that he can use the Department of Justice to pursue politically inconvenient leakers, even if there is no evidence that they have broken any laws. He has assailed the media to law enforcement officials And he has publicly engaged in legal doublespeak, claiming that hush money his attorney paid to alleged mistresses couldn’t be illegal because the payments didn’t come from the campaign, when the fact that they didn’t come from the campaign is the key issue that would make the payments illegal.
This contempt for legal procedures has spread. On the right, 77,000 people liked Trump’s tweet lamenting the political inconvenience of indicting two sitting Republican congressmen. On the left, partisans have started imitating the Trumpist style, with Stormy Daniels’ lawyer, Michael Avenatti marching through cable news, bellowing that Trump is going down and urging democrats to “fight fire with fire” and protesters gathering at Paul Manafort’s trial with signs saying “Lock him up” and “Guilty.”
And now the erosion of respect for the rule of law is poised to swallow Trump himself, with Bob Woodward publishing a book that details an “administrative coup d’état” where presidential staff defy Trump’s orders and steal papers off of his desk to prevent him from signing them. When a senior administration official wrote an anonymous op-ed claiming, “I am part of the resistance inside the Trump Administration,” the official argued that a group of staff members “vowed to do what we can to preserve our democratic institutions” by undermining some of the president’s more dangerous impulses. To Trump’s detractors, this framing and talk of resistance may come as a relief – evidence that there are forces restraining an unhinged president. But these internal resistors are taking power by stealing it and that should scare us all. No one has elected these resisting staff members. No one has oversight over what they are doing. They are operating completely outside of the lawful process. If the president is unfit, there are procedures to remove him, ways to get him ousted from office. The president may be “anti-democratic” as the author claims, but so is secretly usurping presidential power.
The rule of law’s protection only exists as long as government officials respect and follow legal procedures. The staff members who seek to protect the public by secretly thwarting the whims of their boss not only undermine the rule of law in the abstract, they weaken the strength of existing law enforcement investigations. Trump has repeatedly claimed that the investigation into Russian interference in the 2016 election is a manifestation of a “deep state” conspiracy to thwart his administration, an argument Duncan Hunter has picked up for his own defense. Now the president has a New York Times op-ed explicitly confirming his fear that he is the target of functionaries’ efforts to undermine his decisions. This will strengthen his hand if he tries to shut down the Mueller investigation.
If Trump is the danger that his employees appear to believe he is – and there is good reason to believe that he is – join efforts to impeach him, resign en masse and go public with the reason why, or corral the cabinet to remove him (even if that legal process is complicated). They may believe that by staying on and acting as roadblocks to Trump they are protecting the country, but their actions are actually threatening the constitutional order. We are only protected by the Constitution to the extent that we adhere to constitutional principles. It is a fragile republic. To keep it, we must respect it.
Originally published by the Just Security, New York University School of Law, under a Creative Commons Attribution-No Derivs-NonCommercial license.