For me, one of the most alarming things about Donald Trump was his willingness to try to overturn a Presidential election.
As it stands, the rule of law is in such a parlous state in the American body politic. Yet during the last US elections, I was surprised at how few of my fellow Americans weren’t as concerned by constitutional concerns and the rule of law among the miscellany of hot topics - inflation, wars, immigration etc.
The Democrats have done a lot of damage in recent times (as McCarthy write). And the Republican party is dominated by right-wing populists - not conservatives. The Republican Congress has no ability to tell President Trump no, not even sometimes. This is important because Congress is primus inter pares. Representatives write the laws, presidents are supposed to execute them faithfully, and the courts are meant to apply them without fear or favour. The ever greater deployment of executive power by President Trump is very serious. It frustrates the proper functioning of the legislative branch (by usurping their role) and/or hampers the proper functioning of the executive (power deployed for self-serving and/or ulterior motives).
Trump is a disgrace to the office of the presidency.
By Andrew C. McCarthy
A country in which law is king asks not whether government hardball works but whether it is legal
‘In America the law is king.” That’s how Thomas Paine put it. “For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”
Nearing a year into his second term, President Trump has some very different ideas about what the law, and who the king, should be.
Trump has not been solely responsible for the rule of law’s erosion. There is history here. Kennedy and Johnson leveraged the FBI, wiretaps, and tax records to coerce businesses and spy on rivals, journalists, anti-war activists, and Martin Luther King Jr. And then there was Nixon and Watergate.
Obama’s innovation was “phone and pen” governance: A president who can’t get his way with Congress uses the administrative state to work his will. He and Biden (the third Obama term) forged the template Trump is exploiting: a dual perversion of prosecutorial discretion and equal protection of law.
The former used to be an unremarkable resource-allocation doctrine: There is more crime than prosecutorial resources, so priorities must guide decisions on what cases to bring. Obama refashioned prosecutorial discretion into a negation of the president’s duty to execute the laws faithfully. Decisions were based not on how best to enforce Congress’s laws but on how to effect the president’s will regarding what the law should be, subordinating the law to executive fiat. When Trump, without any justification, refuses to enforce the TikTok divestment statute (which mandates sale by the platform’s China-controlled owner), he walks a well-trodden path.
Equal protection, our principle that justice is blind, simultaneously gave way to the demonization of political opponents, gussied up as “social justice” (in the service of Democrats’ racial obsessions, economic distortions, climate alarmism, and sundry fetishes). Obama sicced the prosecutors and regulators on conservative organizations, gun retailers, police departments, etc. Biden’s lawfare aimed to bankrupt, incarcerate, and politically annihilate Trump, the Democrats’ archnemesis.
By early 2024, with the Republican nomination all but sewn up, Trump was reeling from half a billion dollars in civil verdicts. In a due process travesty led by the Biden Department of Justice and Democratic state district attorneys, he was looking at four potential criminal trials, queued up to chain him to courtrooms until Election Day. With cases steered to heavily Democratic jury pools, at least one preelection conviction seemed inevitable. (Trump was indeed convicted in Manhattan, in an absurd case involving hush money paid to a porn star.)
It’s easy now to forget that this pernicious strategy nearly worked. Trump, however, will never forget. Four things about the experience are indelible.
First, the brazenness of it. Democrats took unseemly glee in wielding prosecutorial power against him. In her campaign for New York attorney general, Letitia James vowed to dog Trump if elected, and she won in a landslide. Law enforcement could be politicized openly, without apology. Trump has devoured this lesson: Lawfare is craved by the parties’ base supporters, online “influencers,” and the nighttime cable carnivals.
Second, Democrats showed no mercy. In her civil-fraud prosecution of Trump, James tried to take his children down with him. Never the forgive-and-forget type, Trump will not let that go. In September, when his appointees at the FBI and DOJ executed search warrants at the home and office of John Bolton, Trump’s former national security adviser and now tireless critic, the president observed that Bolton now knew how he felt when the FBI rifled through Melania Trump’s belongings during the Mar-a-Lago raid. Bolton had cheered the Biden DOJ’s classified documents probe of Trump. Now Trump is cheering his DOJ’s classified documents probe of Bolton.
Third, Trump was saved by the Supreme Court’s July 2024 ruling that he had immunity from prosecution for executive actions, even if taken to further bogus claims of a stolen election. Trump argued a maximalist position — namely, a president must be able to engage without fear in conduct that many would condemn — and the Court substantially agreed with him. Or, at least, the majority agreed that Congress, rather than courts and prosecutors, is our system’s check on executive excess. This is constitutionally sound, but if an unscrupulous president intimidates the House and Senate caucuses of his party, he becomes unconstrained.
Finally, Democratic lawfare intensified Trump’s contempt for his first-term aides. Until the wheels came off after his 2020 election defeat, Trump mostly listened to these seasoned Washington insiders — kicking and screaming, sure, but he listened. And what did he get out of it? A better first term than he or we had any reason to expect, in my judgment. From his skewed perspective, though, Trump lost because these advisers let the Democrats “rig” the election only to have them, now victorious, persecute him — employing the abuses of power that these advisers had admonished were beneath presidential dignity. If he ever got back to the Oval Office, Trump would be Trump.
Well, he won. A different manner of man might assess that lawfare, having contributed mightily to the Democrats’ defeat, is too politically toxic. But the president — now 79 and facing no more elections — is obsessed with comeuppance. Congressional Democrats are an impotent minority, and Trump sees their “fake news” media allies as so biased and unpopular that bad press is good press.
Trump’s predecessors taught him nothing he didn’t already know. He has never felt compunction about exercising power punitively. Still, the Democrats’ lawfare in broad daylight was instructive. To the baseline they set, now add Trump’s “transactional” nature, his apathy about the rule of law, and his score-settling incentives and autocratic propensities.
This has proven combustible. And as Orwellian as it is audacious. Upon taking the reins as attorney general, Trump loyalist Pam Bondi established the “Weaponization Working Group.” Its self-described mission is to end the politicized abuse of law enforcement by . . . yes, unabashedly investigating Trump’s political nemeses. It’s now led by Ed Martin, raised to MAGA heights for his exertions on behalf of January 6 rioters. Trump granted clemency to all of them, 1,500 or so, including those who had viciously assaulted police. For good measure, he installed Martin as the DOJ’s pardon attorney. It’s a troll, but so was Trump’s attempt to appoint Martin as U.S. attorney for Washington, D.C. That was too much, even for cowed Senate Republicans, after Martin announced investigations of Biden DOJ special counsel Jack Smith for the crime of investigating Trump, and of Senate Minority Leader Chuck Schumer (D., N.Y.) over hyperbolic rants against conservative Supreme Court justices.
No one thought Schumer’s foolish dudgeon was criminal, but highlighting it frames the prosecution that Smith based on Trump’s infamous January 6 Ellipse speech as sheer lawfare. To revise the history of the 2020 election as rigged and the ensuing indictments of Trump as partisan abuses of power is a core element of the Trump DOJ’s crusade.
Under Bondi and Kash Patel, Trump’s chosen FBI director, scores of agents and prosecutors who worked on the January 6 and Trump investigations have been purged or reassigned. That effort was steered by Emil Bove, the former Trump defense lawyer who’d been installed in a top DOJ post. Bove forced the resignations of top New York federal prosecutors who objected to his directive that they drop a corruption case against New York City Mayor Eric Adams, in crude exchange for Adams’s cooperation in Trump’s illegal-immigration crackdown. Bove has been rewarded with a coveted Third Circuit judgeship.
Meanwhile, Tulsi Gabbard and Bill Pulte, the myrmidons Trump selected as director of national intelligence and director of the Federal Housing Finance Agency, have devoted their offices to the revisionist enterprise. Gabbard’s job is to hype Russiagate, the long exposed but — to the consternation of the MAGA base — insufficiently prosecuted Democratic scheme to smear Trump as a Kremlin mole. Based on Gabbard’s breathless disclosures, the DOJ is investigating James Comey and John Brennan, Obama’s FBI and CIA directors. (Trump grudgingly admits that the Supreme Court’s immunity ruling protects Obama himself.) Pulte’s perusal of mortgage filings by Trump tormentors Letitia James, Senator Adam Schiff (D., Calif.), and Federal Reserve Governor Lisa Cook (a Biden appointee Trump is seeking to fire in his quest to control the Fed) have similarly yielded DOJ bank-fraud probes.
Naturally, these investigations are collectively hampered by weak evidence, immunity defenses, statute of limitations lapses, and patent selective prosecution claims. But the objective is not necessarily to charge. Lawfare makes the process the punishment. Trump’s targets will be put through the wringer to which he was subjected: searches, audits, legal fees, and constant anxiety.
When even a pretext for criminal investigation is lacking, the president’s tack is bill of attainder–style extortion. He has targeted the businesses of such antagonists as Chris Krebs (the former cybersecurity official who refuted Trump’s 2020 election-fraud blather) and law firms that formerly employed lawyers who led investigations against Trump. In executive orders, Trump blithely castigates the firms for all manner of misconduct and pronounces punishments — revoking security clearances, banning firm personnel from entering federal buildings, voiding contracts — that could potentially put them out of business. Some firms are fighting back in court. Others, however, have staved off extinction by agreeing to provide free legal work — aggregating to nearly a billion dollars in value — to Trump-favored causes.
By the same heavy-handed tactics, Trump has clobbered Harvard, Columbia, and other universities. It cannot be denied that there is virtue in the crusade against campus antisemitism and DEI activism. But in negotiations, Trump has demanded influence over curricula, faculty hiring, and viewpoint auditing. To pressure for capitulation, the administration has frozen billions in government research grants, blocked visa approval of foreign students, and threatened to revoke the institutions’ tax-exempt status, patents, and accreditation. Columbia said “uncle,” agreeing to pay $220 million (among other concessions). Harvard won a first litigation round when an Obama-appointed judge invalidated the funding freeze, but the university knows that victory may be short-lived and that Trump has leverage against which courts are powerless. Other institutions watch, and quake.
The shredding of due process is a feature of Trump’s immigration enforcement. It’s evident in Trump’s assertions that Biden’s border collapse makes compliance with statutory deportation procedures impractical and that judges who cry foul are uniformly “radical,” “crooked,” “unhinged,” “left-wing,” or “rogues.” The administration has orchestrated summary deportations, invoking inapplicable wartime measures — such as the 1798 Alien Enemies Act, which Trump says was triggered by a Venezuelan gang’s “invasion” of the United States — to mass-remove alleged alien criminals to a notorious Salvadoran prison. (They were later repatriated to Venezuela, even as Trump has threatened war against the Maduro regime.) Other allegedly criminal aliens have been dispatched to such third-world basket cases as South Sudan, Honduras, and Eswatini (formerly Swaziland) — countries with which the administration cut deals to accept deportees who can’t be sent back to their home countries.
You can’t say the in terrorem effect is not working: The border crisis is over and aliens are self-deporting in droves. A country in which law is king, though, asks not whether government hardball works but whether it is legal.
Paradoxically, then, I’ll close on an optimistic note. Trump’s legacy includes the judges he appointed, particularly on the Supreme Court. It was a task he delegated to the Federalist Society and Senator Mitch McConnell (R., Ky.), and it resulted in the appointment of jurists dedicated to the law, many of whom faithfully ruled against the worst excesses of Trump’s first term. At his second term’s start, Trump flooded the zone with controversial executive orders. He has since claimed unilateral power to fire agency heads and employees, cancel congressional funding, mothball agencies, impose tariffs at will, and exert lethal military force against alleged drug dealers on the high seas (an intensification of the saber-rattling against Venezuela). Challenges are now working their way up the court system. With the Republican Congress too paralyzed to check the president’s overreach — much of it usurping Congress’s own power — it will be up to the judiciary to restore order. The Supreme Court will do its part.
Of course, there is a limit to what judges can do. They can decide only the cases that come to them and have no power to enforce their judgments. But if law is still king in America, it is not because of courts. As Alexis de Tocqueville recognized, it is because regard for the law is basic to the American character. The resulting culture cannot be snuffed out by a president’s indifference to it. It will always present an opportunity for new leaders to rise on the promise of restoring the rule of law.
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