Trump and the Rule of Law, Part 1
Americans have a stark choice in 2024: democracy or something else, very dark
Earlier this month, I went on a week-long speaking tour in London and Germany about Trump, the rule of law, and the fate of American democracy. This is part 1 of a four-part series covering my discussions with audiences of scholars, students, and members of the European communities. We covered Trump’s plans for the 2024 election, why Trump’s indictments are so important, how American politics got to this point, and what we can do about it.
My core message?
If I say this once I will say it 100 more times between now and November 2024: Too often, people — including in the media — talk about this election like it’s any other election, with a choice between two candidates and competing visions for our democratic republic, where the people hold the power, not a single ruler.
Not so.
This election is different. So we need to frame the choice correctly. The choice in November 2024 is either democracy (in the form of a vote for the candidate offered by the Democratic Party, whoever that is) or something other than democracy (in the form of a vote for the candidate presumptively offered by the Republican Party, i.e., Donald J. Trump).
If given the choice as framed in those stark terms, some Americans might still choose a strongman who defines the “rule of law” as he sees fit. If enough Americans want that, democracy as we know it will end in the United States.
That would be bad.
But at the very least, we shouldn’t be blindsided if that happens.
It’s time to have an honest discussion about the choice.
How did I get to talking about this?
I began speaking about civics and the rule of law publicly by happenstance. Although I’ve been teaching about constitutional law, administrative law, and civil litigation for many years now, it wasn’t until Trump took office that questions of civic literacy took center stage, and I felt a need to offer some clarity to folks whose life experience does not include the privilege of a law school education.
Early in Trump’s term, I was reading the New York Times one Sunday morning and saw something in a column that suggested that the president’s power to pardon federal crimes was absolute — meaning there are no checks on it. “That isn’t right,” I said to myself. A presidential pardon to all white people on the basis of their race would violate the Equal Protection Clause of the 14th Amendment, for starters.
So I wrote my first Op-Ed that ran in the Baltimore Sun, entitled “Pardon Power is Not Absolute.” You can read it here.
That led to radio appearances, more Op-eds, commentary across numerous on-air networks, and four books — the most recent (ironically) covering the pardon power in depth. It will be published on September 3, 2024.
And here we are today.
European audiences were rapt. Their questions were thoughtful and well-informed. They are concerned. We should be too.
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What is the rule of law?
One thing I take pains to do in law school classrooms and in my public-facing work is to define terms that many of us assume we already know, but when pressed, probably can’t put words to. The “rule of law” is one of those ubiquitous terms that gets tossed around a lot.
Here’s what I mean when I say, “rule of law.”
The rule of law is a political ideal that all citizens and institutions are accountable to the same laws established by legislatures and to some degree by the courts through precedent. It’s founded on (a) fair laws, (b) fair processes, and (c) a commitment to peaceful compliance with the legal process.
Dissatisfaction with the government under a rule-of-law system is handled by going to court, voting at the ballot box, running for office, or protesting. It does not include taking up arms against the government and other citizens with whom we disagree.
Given the proliferation of firearms in the United States, the last option is not merely a hypothetical. America accounts for ⅓ of all civilian guns in the world. 46% of American households own at least one firearm, which translates to over 81 million gun owners (with an average of 5 guns each) and over 393 million firearms in the United States.
Trump has promised to pardon a “large portion” of the 1,000+ criminal defendants prosecuted for the breach of the Capitol on January 6, 2021. It’s a private militia in the making.
What happened to the rule of law since Trump took office?
Donald Trump was impeached twice and is currently facing a whopping 91 felony counts across four jurisdictions. Thus, he — like millions of other Americans — is being held to our substantive laws and legal processes.
The upcoming trials will take place smack dab in the middle of the 2024 presidential election:
Trump is in the midst of a civil trial in New York, in which the judge has already ruled that Trump, his sons, and the Trump Organization engaged in business fraud.
The federal conspiracy case relating to the January 6 insurrection is set for trial on March 4, 2024.
The federal trial in the Mar-a-Lago classified documents case is set for May 20, 2024.
We don’t yet know the trial date of the election interference case in Fulton County, Georgia, or the Manhattan DA’s criminal case involving his hush money payoff to Stormy Daniels.
These trials are a “go.” Yet we know from his public rants and attacks on the judges, prosecutors, and clerks that Trump is dissatisfied with the rule of law applying to him in the first place.
One pressing question, therefore, is whether he will adhere to the outcomes of these legal processes. Or whether something else — like another January 6, 2021 insurrection — will occur in defiance of the rule of law.
I could go on at length about the ways in which the rule of law (and even the legitimacy of the judicial system in the United States) has been stretched and distorted since Trump took office. What matters most in this moment is that the Republican Party is doubling down on its unwavering support of him.
And his plans are dark.
What happens to the rule of law under a second Trump presidency?
Recall that the rule of law requires three things: (a) substantive laws passed by legislatures, i.e., the “thou shalt not x” rules that in a democracy apply to everyone, including people in power; (b) established procedures for enforcing and adjudicating the substantive laws; and (c) a commitment to peaceful compliance with the outcome of the legal process.
Bear in mind that (b) — the procedures — are designed to ensure fair outcomes. The Sixth Amendment, for example, includes the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who your accusers are and the nature of the charges and evidence against you. These did not exist under the English monarch when the original Constitution was ratified in 1788 or when the Bill of Rights was added later. Their purpose is to counteract the human tendency to amass, entrench, and abuse the power of government.
Team Trump already has big plans for 2025 if he wins again, which prominently outmaneuver fidelity to substantive law, procedural law, and a commitment to non-violence. The rule of law would become a footnote in American history.
Trump wants to allow criminal prosecution of his political revivals, thus dispensing with 50 years of policy and practice intended to shield criminal prosecutions from political considerations. Named individuals include former chief of staff John F. Kelly, former attorney general William P. Barr, former Trump attorney Ty Cobb, former Joint Chiefs of Staff chairman General Mark A. Milley, lawyers and officials at DOJ, as well as President Joe Biden and his family.
Trump’s other plans include potentially using the Insurrection Act, which authorizes the president to deploy the military for domestic law enforcement purposes. The world saw a version of this occur during his first presidency, when a peaceful crowd was forcibly dispersed from Lafayette Square in Washington, D.C. in 2020. Just imagine how Trump might wage a military response to First Amendment protests during a second administration.
Trump’s inner circle is also developing what’s called “Project 2025” — a Linked-In-type database of 20,000-plus vetted loyalists. The idea is to fire career employees and staff government positions with sycophants while dismantling the powers of the national security and intelligence communities. Trump has also signaled a plan for immediate mass deportations.
In short, Trump wants to reconfigure the federal government to increase his unmitigated control. And here's the thing about Trump: he does what he says he’s going to do.
Should we be alarmed?
Yes.
Here’s President Joe Biden, Philadelphia, July 13, 2021: “There is an unfolding assault taking place in America today—an attempt to suppress and subvert the right to vote in free and fair elections, an assault on democracy, an assault on liberty, an assault on who we are as Americans. I’m not saying this to alarm you. I’m saying this because you should be alarmed.”
The choice in 2024 is not between two major political parties and two policy platforms. It is between democracy and the rule of law on one hand, and some form of authoritarianism on the other. Maybe the latter is what some Americans want. We are all entitled to our opinion. But it’s time to shape the debate correctly, so people really understand the stakes before they go to vote in November of 2024 (or choose to stay home).
Stay tuned for part 2, which will go into more detail about Trump’s indictments.
Follow the facts,
KW
Education is key to protecting democracy.
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Sadly this was prescient.
For you, Professor Wehle, and any of your followers, who might know students in law school anywhere in the world, please let them know about the Karl Popper Legal Writing Prize that encourages AI use to assess how Open Society issues might evolve in the coming decades. The prize pool is $25,000 US and it is open to any law student globally, but the papers are due Oct 10. The prize is sponsored by the Atoll Society. https://www.atollsociety.org/submission-criteria