The Trump administration makes clear nearly every day that the rule of law is for chumps.
It has been nearly three months since they deported 137 Venezuelans without hearings to a maximum-security prison in El Salvador, where they are being held indefinitely in horrific conditions. Others have been deported to third countries with which they have no connection.
Many have been deported in clear violation of federal court orders enjoining the administration from doing so. Judges have repeatedly held that deportation without notice and a hearing is illegal. The administration has claimed to have no power to obtain the return of people sent, even in defiance of a court order, because they are no longer in the United States.
Eight detainees were being sent to South Sudan, one of the world’s worst conflict zones. A Boston judge said it was “unquestionably in violation of this court’s order”. Rather than returning them, the Trump administration diverted the plane to another African country wracked by conflict, Djibouti, where they are held in a shipping container.
Kilmar Abrego Garcia, a Venezuelan who the administration admitted had been deported by mistake, and had been cleared to remain in the United States because of a legitimate fear of gang violence, was accused by Kristi Noem, the homeland security secretary, of being an MS-13 gang member himself.
Secretary Noem declared that he would never return to the United States. On Friday, the Trump administration was somehow able to obtain the consent of El Salvador’s president to send him back, but only after a quick indictment was obtained accusing him of being a human trafficker, based on a 2022 traffic stop where other migrants were in his van. For more than three years, Garcia checked in monthly with Immigration and Customs Enforcement (ICE), which knew of the traffic stop and saw no wrongdoing.
This is the backdrop of the protest and violence that have erupted in California in recent days. It appears to foreshadow the next stage of lawlessness and a movement toward governing by emergency decree.
Unlike the January 6 riots at the Capitol, the protests in Los Angeles were largely peaceful. To be sure, there were incidents of violence, a classic situation calling for police intervention. Five LAPD officers suffered minor injuries, none life-threatening. No ICE injuries were reported.
That was not good enough for the Trump administration, which nationalised the California National Guard over the objections of the governor and mayor of Los Angeles, and now Trump has called in the marines. It is unclear how they will be deployed and under what authority.
The Trump administration is simultaneously seeking to suppress dissent with massive force, escalate and provoke confrontation and argue that blue state officials are too incompetent or too “woke” to enforce the law. As Trump wrote on Truth Social, “Looking really bad in L.A. BRING IN THE TROOPS!!!” He tried to mobilise the military during the George Floyd protests, but the defence secretary declined. Not so today. For Trump, the military is being transformed into an extension of domestic political power, not a force to defend the country against outside enemies.
The consistent thread is hostility to any alternative centre of power. The administration has already arrested a judge, a mayor and a member of Congress – and Trump stated that he would support arresting California governor Gavin Newsom.
Trump’s “big, beautiful bill” contains a provision depriving courts of jurisdiction to hold executive branch officials in contempt of court orders, so the judiciary can be ignored with impunity. Trump and his spokespeople have attacked judges who have decided cases against him as “USA-hating” “monsters” who want the country to “go to hell”. He cannot conceive that the 185-plus rulings against him so far were based on the law rather than inherently treasonous conduct by judges, including judges he appointed, requiring impeachment or worse. It is all an elaborate dance to intimidate the judiciary into avoiding a full-out war with the administration.
Last week, the head of the FBI ordered a major diversion of investigative resources because his predecessor posted a photo of rocks on social media that formed the numbers 8647 (86 being a restaurant term meaning removed from the menu and 47 being President Trump’s presidential number). FBI Director Patel said: “Do you know how many agents I’ve had to take offline from chasing down child sex predators, fentanyl traffickers, terrorists because everywhere across this country, people are popping up on social media and think that a threat to the life of the president of the United States is a joke and they can do it because he did it?”
He seemed unaware that his job was to investigate serious crimes, not to suppress the political opinions of his adversaries by suggesting that their anti-Trump posts were homicidal threats.
All of these actions are of a piece to undermine the rule of law, a principle that should not be controversial. It is an age-old, essentially conservative principle not tied to specific ideology. Judges are to apply the facts to clear and accessible laws and to apply them without bias for or against any litigant. It only requires a judicial and legal function that is independent from executive power or interference.
But even the most minimal check on executive power is anathema to the Trump agenda. Since the early days of America, the judiciary has had the critical role to “say what the law is”, and it has often taken very conservative, indeed at times reactionary views, upholding slavery, segregation and internment of citizens.
Conservatives have poured billions of dollars into vetting and ensuring a conservative judiciary. But that is not good enough; this administration needs complete control and to win every case. Leonard Leo, the arch-conservative who has done more than anyone to pack the courts with conservative judges, was called out by Trump as a “sleazebag” who “hates America” because many of his touted appointees actually felt compelled to follow the law.
The rule of law – a set of guardrails for neutrality, honesty and judicial independence – is the precondition for avoiding tyranny. As Benjamin Nathans wrote in his Pulitzer Prize-winning To the Success of Our Hopeless Cause, there were 753 trials of Soviet political dissidents during the Brezhnev years that resulted in 753 convictions (and no acquittals). For Trump, a 753-0 record in political trials raises no questions; it is how the system should work.
This destruction of rule of law infrastructure is a feature, not a bug, of ambitious authoritarians. Go after the judges, go after the lawyers, and use the power of investigation and criminal indictment as yet another chainsaw – not just to put your political enemies in jail if you can, but to intimidate your opponents into silence. And bring out the big guns, to show everyone who controls the most massive firepower the world has ever known. This is where we are today.
The rule of law is the last impediment to absolute power. And it is now under siege. It will be difficult to put this bedrock structural principle of justice back in place when he is done.
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