“Trump, the Republican Party, and the Rule of Law” By: Michael Klarman, Kirkland & Ellis Professor, Harvard Law School

 

A quick glance around the world these days can be frightening for defenders of the rule of law: thousands of officially sanctioned extrajudicial killings in the Philippines under President Rodrigo Duterte; lengthy prison sentences on fraudulent charges for two journalists reporting on ethnic cleansing of Rohingya in Myanmar; the officially orchestrated torture and dismemberment of Washington Post contributor Jamal Khashoggi in the Saudi Arabian consulate in Istanbul; the imprisonment of hundreds of opposition politicians and journalists by President Recep Erdogan in Turkey; government packing of the courts in Poland; the criminalization of immigrant aid groups and the forced closing of Central European University in Hungary.  The list goes on and on.  Surely, most Americans believe, such things could never happen in the United States.

Think again.  President Trump poses a greater threat to the rule of law than anything Americans have witnessed in generations. To be sure, the United States is not likely any time soon to see officially sanctioned killings of drug users without due process or mass incarcerations of journalists daring to criticize the government.  Yet, along a wide variety of dimensions, Trump shreds the rule of law.  The Republican Party, which has largely become a “cult” of Trump worshipers—in the words of recently retired Republican senator Bob Corker—has been mostly complicit.  Consider several examples.

The rule of law does not countenance a nation’s chief executive selecting, at his whim, winners and losers in the economic marketplace.  Yet Trump has frequently punished corporations and their executives when they have dared to cross him.  Kenneth Frazier, the chief executive of Merck & Co., resigned from the President’s American Manufacturing Council in protest against Trump’s refusal to offer an unqualified repudiation of white supremacists after the violence erupting during a “Unite the Right” rally in Charlottesville, Virginia, in the summer of 2017 (“very fine people on both sides”). Trump immediately responded on Twitter that Frazier’s resignation from the council would give him more time “to lower ripoff drug prices.” When Harley Davidson responded to European tariffs on its motorcycles—which were increased in retaliation for Trump administration tariffs on steel and aluminum—the President responded, “We won’t forget, and neither will your customers.” When General Motors Co. recently announced that it was cutting thousands of jobs and closing several manufacturing plants in the United States, Trump immediately announced, “We are now looking at cutting @GM subsidies.”

The President’s retaliatory actions against corporate foes have not been limited to tweeting threats. Trump’s furor at the Washington Post—for, among other things, counting the number of his lies (over 8,000 and growing)—has led him to retaliate against its owner, Jeff Bezos, the founder and chief executive of Amazon.  Trump has personally intervened with the Postmaster General on more than one occasion to urge a doubling of the postal rates charged for delivering Amazon packages.  (Trump has kept these meetings off his public calendar.) Similarly, Trump’s Justice Department has sought to block the proposed merger between AT&T and Time Warner, unless CNN—the president’s favorite media punching bag, which happens to be owned by Time Warner—is sold off first.  Because the Justice Department today rarely objects to such vertical mergers, one has to wonder whether the President has intervened to punish a political enemy.  Regardless of whether such punitive efforts by the President succeed, the chilling effect on other potential corporate critics of Trump must be considerable.

A free and vigorous press is critical to maintaining the rule of law, among other reasons, for the spotlight it shines on government corruption and incompetence. Yet Trump constantly assails the New York Times, the Washington Post, and any other news organization that provides him with negative coverage as “the enemy of the people” (a phrase that, historically, has been an incitement to annihilation).  Trump has sought to intimidate reporters he deems unfriendly by tweeting criticisms of them, calling for them to be fired, and inciting crowds at campaign rallies to threaten violence against them.  After NBC published a “fake news” report that Rex Tillerson had called Trump a “fucking moron”—a story that the Secretary of State declined to repudiate on more than one occasion—the President threatened to have the network’s broadcast license revoked.  When the New York Times published an anonymous op-ed piece by a senior administration official testifying to Trump’s unfitness for office, the President demanded that his Attorney General investigate the author’s identity on national security grounds.

Another core tenet of the rule of law is that law enforcement should be insulated from politics: Neither the friends nor the enemies of the regime in power deserve special treatment in the administration of the law. Trump, who viscerally resists all constraints on his power, has demonstrated special disdain for this rule-of-law principle.

As one of his first acts in office, Trump asked the director of the Federal Bureau of Investigation, James Comey, to pledge his loyalty—something that the FBI director owes to the U.S. Constitution, not the president. Trump quickly fired Comey for manifesting insufficient loyalty to the President by refusing to shut down the Bureau’s investigation into allegations of collusion between the Trump campaign and Russia during the 2016 presidential campaign.  After more than a year of constantly humiliating his Attorney General, Jeff Sessions, for refusing to manifest sufficient loyalty to Trump—Sessions had recused himself from the Russian investigation, as he was plainly required to do under the Justice Department’s internal ethics rules—Trump fired him too.  In November 2017, Trump concisely summarized his disdain for this basic rule-of-law principle: “The saddest thing is that because I’m the President of the United States I’m not supposed to be involved with the Justice Department, I’m not supposed to be involved with the FBI, I’m not supposed to be doing the kinds of things I would love to be doing and I’m very frustrated by it.”

In banana republics, elected officials sometimes throw their political opponents in jail on fraudulent charges; democracies frown upon such a practice.  Yet during the 2016 presidential campaign, Trump promised, if elected, to have Hillary Clinton criminally prosecuted.  In the second presidential debate, Trump declared, “If I win, I’m going to instruct my attorney general to get a special prosecutor to look into your [Hillary Clinton’s] situation, because there’s never been so many lies, so much deception.”  A minute later, Trump said to Clinton that if he became president, “you’d be in jail.”

Apologists dismissed such rhetoric on the ground that Trump should be taken “seriously but not literally.” Yet, as the President’s approval ratings quickly reached record lows for the early months of an administration, he began calling upon the FBI to resume its investigation into Clinton’s emails and the Uranium One “scandal.”  Capitulating to repeated demands from the President, the Justice Department appointed a special team of federal prosecutors to investigate whether the Obama Justice Department had inadequately probed Hillary Clinton’s ties to the sale of U.S. uranium rights to a Russian-controlled company during her tenure as Secretary of State.  Crowds at Trump’s political rallies revived chants of “lock her up.”

Naturally, autocrats use the criminal law to incarcerate their political enemies, not their allies.  A couple of months before the 2018 mid-term elections, Trump ridiculed Attorney General Sessions (“Good job, Jeff”) for permitting Justice Department prosecutors to indict Republican congressmen Duncan Hunter and Chris Collins (who happen to have been the first two congressional representatives to endorse Trump’s presidential election bid)—for, respectively, corrupt use of campaign funds and insider trading.  Sessions’ actions, Trump complained, had jeopardized “[t]wo easy wins” for the Republican team.

Of course, the rule of law cannot exist without fair-minded judges doing their best to interpret the law in nonpartisan ways.  On this dimension as well, Trump seems to care only about winning, not in bolstering the rule of law.  Trump has attacked sitting judges in a manner unique among American presidents, who have sometimes criticized court decisions, but rarely individual judges.  During the presidential campaign, he denounced Judge Gonzalo Curiel, who was then presiding over a lawsuit against Trump University for allegedly defrauding students. Trump called Curiel a “Mexican” and declared his rulings “a total disgrace.”  (The judge, in fact, was born in the United States and has lived all of his life here; his parents were Mexican immigrants).

Since becoming president, Trump has characterized Judge James Robart—the federal district judge, appointed by President George W. Bush, who invalidated Trump’s first executive order restricting immigration from seven predominantly Muslim nations—as a “so-called” judge.  He called the federal circuit court that affirmed Robart’s order “disgraceful.”  Trump also urged Americans to blame the federal judiciary for the next domestic terrorist attack: “Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. . . . If something happens blame him and [the] court system.”  More recently, Trump has denounced federal district judge Jon Tigar of San Francisco, who invalidated the President’s revised asylum policy on the grounds that it violates the plain meaning of the federal asylum statute, as an “Obama judge.” This tirade earned Trump an unusual rebuke from Chief Justice John Roberts (“We do not have Obama judges or Trump judges . . . . What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”).

Obviously, the rule of law also requires the periodic and peaceful transfer of political power in accordance with free and fair elections.  Thus, public confidence in the legitimacy of those elections is critical.  Trump appears to have been the first candidate in history to question the legitimacy of a presidential election before it took place.  After one of his presidential debates with Hillary Clinton, when asked if he would accept the election results if he lost, Trump said, “We’re going to have to see.  We’re going to see what happens.”  At a subsequent debate, he declared, in response to a similar question, “I will keep you in suspense.”  As a result of such statements by Trump, 50 percent of Republicans said before the election that they would not regard Clinton as a legitimate president if elected.

After the election, Trump has repeatedly claimed, without providing any supportive evidence, that three to five million illegal votes were counted in the 2016 election, costing him a victory in the popular vote.  Half of all Republicans believe that Trump won the popular vote, and nearly three quarters of them believe that voter fraud happens frequently.  In fact, experts agree that such fraud—at least of the voter impersonation variety—almost never occurs.  One nonpartisan academic study examined a data set of one billion votes and found thirty-one instances of voter impersonation fraud.  In response to this question—“If Donald Trump were to say that the 2020 presidential election should be postponed until the country can make sure that only eligible American citizens can vote, would you support or oppose postponing the election?”—52 percent of Republicans said they would support delaying the election.

Immediately after the 2018 mid-term elections, Trump and many other Republican leaders charged—again, without evidence—that Democrats were trying to “steal” elections in California, Arizona, and Florida.  Because late-counted votes in these states—often provisional ballots or “absentee” ballots dropped off in person by voters on Election Day—tend to lean Democratic, several Republican candidates in congressional, Senate, and gubernatorial races in those states saw their Election Night leads dissipate and, in some cases, eventually disappear.  There was nothing untoward about such developments; they happen frequently in elections in many states.  For example, Hillary Clinton’s victory in the popular vote in 2016 increased from 0.2 percent on the day after the election to a margin of 2.1 percent after all the votes had been counted.

Yet Trump nonetheless insisted that Democrats were “trying to steal two big elections in Florida”—the gubernatorial and Senate races.  “All of a sudden they’re finding votes out of nowhere,” Trump charged with regard to these races, asking why election officials “never find Republican votes” in their counting of late-arriving ballots.  The ultimately victorious Republican Senate candidate in Florida, Rick Scott, proclaimed, “No rag tag group of liberal activists or lawyers from D.C. will be allowed to steal this election from the voters in the state of Florida.”  Several Republican leaders from across the nation charged that the U.S. Senate election in Arizona had been stolen when Democrat Kyrsten Sinema overcame an Election Night deficit to win by a reasonably comfortable margin (more than 1.7 %).  Calling it “interesting” that late-counted votes “always seem to go the way of Democrats,” Trump denounced “electoral corruption” in Arizona and suggested that a new election might be necessary.  Paul Ryan, in what was essentially his valedictory address as Speaker of the House, denounced the “bizarre” electoral system in California that had resulted in seven Republican-held congressional seats flipping to Democratic control (several of them as a result of votes counted after Election Night).

Elected officials making baseless charges of election fraud for partisan advantage is the height of irresponsibility.  It cannot help but undermine public faith in the integrity of the election system.  Ironically, the only proven fraud to have occurred in the 2018 mid-term elections was perpetrated by a Republican political operative in the North Carolina 9th congressional district—which has led the state board of elections to refuse to certify the result and almost certainly will culminate in a new election.

Of course, the rule of law depends not only on the perceived legitimacy of elections but also on their actual fairness.  A combination of political gerrymandering of House districts and malapportionment of the Senate and electoral college enabled Republicans to control the House, the Senate, and the presidency from 2016 to 2018 without winning a majority of the popular votes in any of these fora.  Moreover, the national playbook of the Republican Party now includes various formulae for vote suppression: shortening early-voting periods, eliminating early voting on Sundays (which is disproportionately used by African Americans heading to the polls after church), terminating same-day voter registration, enacting stringent voter identification laws (ostensibly needed to counteract voter impersonation fraud, which exists only in the fevered imagination of Fox News viewers), reducing the number of voting places in poor and minority neighborhoods to force likely Democratic voters to wait in longer lines to cast a ballot, and aggressively purging voter lists.  Republican gerrymandering of legislative districts has become so ruthless and precise that, in 2018, Democratic candidates for the Wisconsin legislature won 54 percent of the popular vote and just 36 percent of legislative seats.  In North Carolina, where Democratic candidates won a majority of the popular vote in congressional races across the state, they won in only three of the state’s thirteen congressional races (though, as noted, one of these Republican victories is still being contested).

In New Hampshire, a Republican legislature made it harder for out-of-state college students to vote after liberal Dartmouth undergraduates were perceived to have cost Republican Kelly Ayotte her reelection bid to the U.S. Senate in 2016.  In North Dakota, the Republican legislature passed a law designed to disfranchise thousands of Native Americans after their votes were perceived to have cost Republican Rick Berg a U.S. Senate seat in 2012.  In Wisconsin in 2018, Republican governor Scott Walker decided to simply stop holding special elections to fill legislative vacancies because his party was losing them—until a state court ordered him to resume holding them (which prompted talk among Republican legislative leaders of impeaching the judge—a Walker appointee—who had issued the order).  In Georgia, particularly ruthless voter purges and stringent voter registration requirements very likely cost Stacey Abrams, a black woman, the governorship in 2018—an especially disturbing result given that most of the votes suppressed were from African Americans and that Georgia is a Deep South state whose flag still includes references to the Confederacy.

No longer satisfied with curtailing access to the ballot, the Republican Party has recently progressed to (indirectly) overturning unsatisfactory election results.  In 2016, Republican state legislators in North Carolina responded to the loss of the party’s gubernatorial candidate by eviscerating the powers of the governorship.  Similar measures to curtail the powers of incoming Democratic governors have recently been enacted by lame duck sessions of state legislatures with Republican majorities in Wisconsin and Michigan.

In Michigan, the Republican-controlled legislature went even further: In September 2018, it enacted laws raising the state minimum wage and mandating employer-paid sick leave in order to keep off of the ballot voter initiatives to similar effect, which then enabled the legislature after the November election to weaken these measures—e.g., delaying the full scope of the minimum wage increase until 2030. (Republicans would not have had sufficient votes in the legislature to satisfy the supermajority requirement for amending initiatives that the voters have passed.)  Even more incredibly, Michigan Republicans, disapproving of the way state voters have been using the initiative process to make law, used the lame-duck session of the legislature to enact a measure making it harder in the future to place initiatives on the ballot.  In Florida, Republican legislators and the Republican governor have been contemplating ways to obstruct implementation of the recently enacted referendum measure—meant to be self-enforcing—that automatically re-enfranchises most felons after they have completed their prison terms.

The rule of law obviously requires, at a minimum, that defeated candidates and parties accept their losses and move on to fight another day.  Increasingly, Republican politicians no longer seem to accept that fact.  What is their justification?  As the Speaker of the Wisconsin Assembly, Robin Vos, recently confessed: If Republican legislators did not act to eviscerate the newly elected Democratic governor’s power, then the state was “going to have a very liberal governor who is going to enact policies that are in direct contrast to what many of us believe in.”  Isn’t that what we used to call democracy?

Last and perhaps most important, the rule of law obviously does not countenance the use of violence for political ends. Yet, Trump not infrequently encourages such violence.  At political rallies during his presidential campaign, Trump urged supporters to “knock the crap out of [protestors],” expressed a fondness for the “old days” when protestors would be “carried out on a stretcher,” and offered to pay the legal expenses of anyone who perpetrated violence against protestors at his rallies.  In August 2016, Trump hinted that if Hillary Clinton won the presidential election and then attempted to replace deceased justice Antonin Scalia with a gun control supporter, “second amendment people” might find a way to prevent it.  In a July 2017 appearance on Long Island, Trump encouraged the police to “rough up” criminal suspects.  At a campaign rally in Montana in October 2018, Trump expressed admiration and approval for Republican congressman Greg Gianforte, who had physically assaulted a reporter asking him a question about Obamacare repeal during his 2017 special election bid for Congress: “Any guy that can do a body slam, he’s my guy,” Trump proclaimed.  Shortly thereafter, Trump warned that immigrants being blocked at the border who threw rocks at American soldiers stationed there in response to the caravan “invasion” might be shot.  (A few days later, when the Nigerian army shot and killed rock-throwing protestors, it cited Trump’s words in justification of its actions.)

Trump’s repeated endorsements of violence—both explicit and implicit—has begun to come home to roost.  In August 2018, in the wake of the Boston Globe’s effort to coordinate a national newspaper response to Trump’s sustained verbal attacks on the media, Robert Chain—reciting Trump’s charge that the press is the “enemy of the people”—phoned in numerous bomb threats against the newspaper’s employees.

 

As Trump’s rhetoric denouncing the caravan of Central American refugees headed to the United States ratcheted up in the weeks before the mid-term elections—“animals,” “criminals,” “smugglers,” “invasion”—two disturbed individuals evidently sharing the President’s animus towards immigrants decided to take action.  In late October 2018, Cesar Altieri Sayoc, Jr., an ardent Trump supporter, sent more than a dozen pipe bombs through the mail to prominent critics of the President, including Congresswoman Maxine Waters, Senator Cory Booker, and actor Robert De Niro.  Just days later, Robert Gregory Bowers, a white supremacist and anti-Semite, who expressed alarm at the caravan bringing “invaders in that kill our people” and blaming it on the Hebrew Immigrant Aid Society—Trump has suggested that Jewish billionaire philanthropist George Soros may have been behind the caravan—murdered eleven Jews in the Tree of Life synagogue in Pittsburgh.  Trump apologists, such as Press Secretary Sarah Huckabee Sanders, expressed “outrage” at any suggestion that the President bore responsibility for violent actions such as those of Sayoc and Bowers, and, of course, it is true that crazy people do crazy things all the time.  Yet, there can be little doubt that neither of these specific acts of violence would have occurred were it not for the President’s incendiary rhetoric distorting the truth about the caravan and seeking to turn it into a national crisis.

The rule of law is more at risk in the United States today than is commonly supposed.  One would hope that the other branches of the national government would check the President’s assault upon it, but this has not happened.  Under Republican control for the first two years of Trump’s presidency, Congress proved more of a willing accomplice to, than a check upon, the President’s assault upon the rule of law.

Under the leadership of Congressman Devin Nunes, the House Intelligence Committee proved more committed to undermining the Mueller investigation of possible collusion between the Trump campaign and Russia in 2016 than to uncovering the truth.  Republican leaders in Congress have blocked efforts to legislate protection for Special Counsel Mueller from being fired by the President without cause.  Congressional Republicans have done essentially nothing to investigate widespread corruption in the President’s Cabinet or his daily violations of the Emoluments Clause.  They have declined to perform oversight of the President’s (arguably treasonous) refusal to take any action to guard against a repetition of Russia’s cyber-attacks on American elections.  They have refused to investigate whether the President’s financial interests may explain his bizarre solicitude for the interests of Saudi Arabia despite its renegade behavior—murdering journalist Jamal Khashoggi in the Saudi consulate in Istanbul, kidnapping the prime minister of Lebanon, and creating the world’s worst humanitarian crisis in Yemen.  (At a 2015 campaign rally, Trump declared that the Saudis “buy apartments from me.  They spend $40 million, $50 million.  Am I supposed to dislike them?  I like them very much.”).

That leaves the judiciary as a potential check upon the President’s assault on the rule of law.  The lower federal courts have actually done a pretty good job thus far of blocking the most lawless actions of the Trump administration—the Muslim travel ban, the ban on transgender military service, the rescission of Deferred Action for Childhood Arrivals (DACA), and the recent executive order prohibiting asylum applications from those entering the country unlawfully.

Yet the Supreme Court’s decision last Term in Hawaii v. Trump, upholding the Muslim travel ban along partisan lines, is disturbing.  The President has never made any effort to hide his anti-Muslim animus.  Candidate Trump called for a “total and complete shutdown of Muslims entering the United States” after the deadly mass shooting in San Bernardino, California, in December 2015.  Moreover, few, if any, counter-terrorism experts believe that barring entry into the United States of travelers from seven majority Muslim nations—from which no perpetrators of terrorist attacks have entered the United States in recent decades—is a sensible policy.  Yet the Court’s conservative majority refused to take a serious look at either the President’s actual motive or the rationality of the policy.  Considering that ruling against the backdrop of the Court’s historical unwillingness to challenge the executive in time of war, terror, or emergency—for those familiar with the cases, think of Debs v. United States (1919), Korematsu v. United States (1944), Dennis v. United States (1951), and Holder v. Humanitarian Law Project (2010)—cannot inspire confidence regarding the Court’s inclination or capacity to protect the rule of law from Trump’s depredations.

In the end, only public opinion as registered through elections can save the rule of law. Because autocrats entrench themselves in power over time and because Republican office holders seem committed to a policy of selectively contracting the electorate, Americans must act quickly to protect the rule of law.  Because one cannot be confident that Trump or Republican elected officials will accept the results of a narrow defeat at the polls in 2020, Americans must act not only quickly but also decisively.  (For those counting on the Supreme Court to rescue the rule of law in such a scenario, it is worth recalling that the last time the United States experienced an extremely close presidential election, a Supreme Court with a narrow conservative majority—much like today’s Court—intervened on constitutionally absurd grounds to ensure a Republican victory.)  The rule of law is at risk, and the American people must rally quickly to save it; the Constitution with its system of checks and balances will not do it for them.

Text last updated January 22, 2019