Attitude from the White House is that ‘the state is me - and I’ll decide which laws to follow’, writes David Leonhardt
Democracy isn’t possible without the rule of law - the idea that consistent principles, rather than a ruler’s whims, govern society.
You can read Aristotle, Montesquieu, John Locke or the Declaration of Independence on this point. You can also look at decades of American history. Even amid bitter fights over what the law should say, both Democrats and Republicans have generally accepted the rule of law.
President Donald Trump does not. His rejection of it distinguishes him from any other modern U.S. leader. He has instead flirted with Louis XVI’s notion of “L’etat, c’est moi”: The state is me - and I’ll decide which laws to follow.
This attitude returned to the fore this week, with James Comey testifing yesterday about Trump’s attempts to stifle an FBI investigation. I realise that many people are exhausted by Trump outrages, some of which resemble mere buffoonery. But I think it’s important to step back and connect the dots among his many rejections of the rule of law.
They are a pattern of his presidency, one that the judicial system, Congress, civic institutions and principled members of Trump’s own administration need to resist. Trump’s view of the law, quite simply, violates American traditions.
Let’s walk through the major themes:
Law enforcement, politicised. People in federal law enforcement take pride in trying to remain apart from politics. I’ve been talking lately with past Justice Department appointees, from both parties, and they speak in almost identical terms.
They view the Justice Department as more independent than, say, the State or Treasury Departments. The Justice Department works with the rest of the administration on policy matters, but keeps its distance on law enforcement. That’s why White House officials aren’t supposed to pick up the phone and call whomever they want at the department. There is a careful process.
Trump has erased this distinction.
He pressured Comey to drop the investigation of Trump’s campaign and fired Comey when he refused. Trump has called for specific prosecutions, first of Hillary Clinton and more recently of leakers.
The attorney general, Jeff Sessions, is part of the problem. He is supposed to be the nation’s head law-enforcement official, but acts as a Trump loyalist. He recently held a briefing in the White House press room - “a jaw-dropping violation of norms,” as Slate’s Leon Neyfakh wrote. Sessions has proclaimed, “This is the Trump era.”
Like Trump, he sees little distinction between the enforcement of the law and the interests of the president.
Courts, undermined. Past administrations have respected the judiciary as having the final word on the law. Trump has tried to delegitimise almost any judge who disagrees with him.
His latest Twitter tantrum, on Monday, took a swipe at “the courts” over his stymied travel ban. It joined a long list of his judge insults: “this so-called judge”; “a single, unelected district judge”; “ridiculous”; “so political”; “terrible”; “a hater of Donald Trump”; “essentially takes law-enforcement away from our country”; “THE SECURITY OF OUR NATION IS AT STAKE!”
“What’s unusual is he’s essentially challenging the legitimacy of the court’s role,” the legal scholar Charles Geyh told The Washington Post. Trump’s message, Geyh said, was: “I should be able to do what I choose.”
Team Trump, above the law. Foreign governments speed up trademark applications from Trump businesses. Foreign officials curry favor by staying at his hotel. A senior administration official urges people to buy Ivanka Trump’s clothing. The president violates bipartisan tradition by refusing to release his tax returns, thus shrouding his conflicts.
The behaviour has no precedent. “Trump and his administration are flagrantly violating ethics laws,” the former top ethics advisers to George W. Bush and Barack Obama have written.
Again, the problems extend beyond the Trump family. Tom Price, the secretary of health and human services, has used political office to enrich himself. Sessions failed to disclose previous meetings with Russian officials.
Their attitude is clear: If we’re doing it, it’s okay.
Citizens, unequal. Trump and his circle treat themselves as having a privileged status under the law. And not everyone else is equal, either.
In a frightening echo of despots, Trump has signaled that he accepts democracy only when it suits him. Remember when he said, “I will totally accept the results of this great and historic presidential election - if I win”?
The larger message is that people who support him are fully American, and people who don’t are something less. He tells elaborate lies about voter fraud by those who oppose him, especially African-Americans and Latinos. Then he uses those lies to justify measures that restrict their voting. (Alas, much of the Republican Party is guilty on this score.)
The efforts may not yet have swung major elections, but that should not comfort anyone. They betray the most fundamental democratic right, what Locke called “the consent of the governed”. They conjure a system in which the benefits of citizenship depend on loyalty to the ruler.
Trump frequently nods toward that idea in other ways, too. He still largely ignores the victims of terrorism committed by white nationalists.
Truth, monopolised. The consistent application of laws requires a consistent set of facts on which a society can agree. The Trump administration is trying to undermine the very idea of facts.
It has harshly criticised one independent source of information after another. The Congressional Budget Office. The Bureau of Labor Statistics. The CIA. Scientists. And, of course, the news media.
The one encouraging part of the rule-of-law emergency is the response from many other parts of society. Although congressional Republicans have largely lain down for Trump, judges - both Republican and Democratic appointees - have not. Neither have Comey, the FBI, the CBO, the media or others. As a result, the United States remains a long way from authoritarianism.
Unfortunately, Trump shows no signs of letting up. Don’t assume he will fail just because his actions are so far outside the American mainstream. The rule of law depends on a society’s willingness to stand up for it when it’s under threat. This is our time of testing.
© 2017 New York Times News Service