Donald Trump won the presidency by promising to restore respect for the law in America. But he’s shown more disrespect for the rule of law than any president in recent history.
He’s called the verdict in the trial of Jose Ines Garcia Zarate (who fired the gun that killed Kate Steinle in San Francisco in 2015) a “miscarriage of Justice” because the jury found that firing a bullet that ricocheted off the ground to kill a person didn’t meet the legal definition of murder. (Garcia Zarate was still convicted of being a felon in possession of a firearm and can be deported during or after his sentence.)
His lawyer John Dowd has argued openly that it’s legally impossible for the president to commit obstruction of justice, because he is the chief law enforcement officer in the United States.
And that was just over a single weekend.
Trump’s disrespect for the FBI and the Department of Justice has been on open display since he fired FBI director James Comey in May. Yet it continues to be not just alarming, but shocking. No matter how many times Trump shows his true colors, it’s difficult to process that he ignores — and refuses to adopt — a principle of the presidency that even Richard Nixon understood: Even men who believe they’re above the law are supposed to act, in public, as if the law is above them.
They’re supposed to wed their agenda for the country, and their sense of what is right, to the institutions and procedures that are in place to constrain the power of individual men and their individual beliefs. They’re supposed to use their power to uphold the rule of law.
“For the rule of law to be real, and not just an abstraction,” Attorney General Jeff Sessions said in May at a candlelight vigil for law enforcement officers killed in the line of duty, “we need brave men and women who are willing to defend it and uphold it on the foreign battlefields and on the streets of our communities.”
But the Trump administration does not value the rule of law. It values law and order. It values law enforcement as a weapon to be wielded in a particular direction: against social disorder, real and feared.
It respects the “front lines” of conflict to protect order, but sees less need to preserve the independence of investigators or prosecutors to choose which violations of law to pursue.
Dowd, Trump’s lawyer, has (perhaps accidentally) revealed the operating principle of this administration, one that stretches beyond Trump’s own actions: a law enforcement official who is looking out for social order is by definition acting in accordance with justice. There is no such thing as a law enforcement official doing the wrong thing for the right reasons. As long as you have a badge or a seal, the end justifies the means.
In other words, it’s embracing the brute reality of power — while obliterating one of its most important constraints.
The difference between the proper process and the appropriate results
Both “rule of law” and “law of order” are tossed around as political slogans more often than not — and often by the same people. But in practice, they represent slightly different sets of values.
The “rule of law” is a procedural value: It says that the right thing for the government to do is to set, and adhere to, proper processes in all cases, without favor or prejudice to where those processes might lead. For a decade, the only people who invoked the “rule of law” in political debates were conservatives arguing against allowing unauthorized immigrants to obtain legal status.
“Law and order,” by contrast, is a substantive value: It says something about what sorts of results the government ought to be getting out of its activity (namely, a reduction in crime and social disorder, and the assurance of a safe and loyal populace).
Deputy Attorney General Rod Rosenstein, for example, had a sterling reputation when he agreed to join President Trump’s Justice Department because he was known to put the rule of law first. He was a Republican who’d served under Democratic administrations and wasn’t blindly partisan; as a US attorney in Maryland, he’d prosecuted not only professional criminals but public officials — even police officers — who he felt had violated the law. The message that no man was above the law, and no man strong enough to defeat it, came through loud and clear. Upholding the law meant going about things “the right way.”
That’s a frame that’s also been used by a generation of Republican politicians in talking about immigration — valorizing legal immigration while vowing to crack down on the unauthorized variety. It’s good to come to America, as long as you do it “the right way”; to come “the wrong way” shows disrespect for the very legal institutions that make America great.
But the people who formed the core of Donald Trump’s movement — his earliest and most fervent supporters — don’t actually care about “the right way.” They’re the Americans who felt profoundly vulnerable to threats to American culture — the sort of people who, in experiments, select potential immigrants based on their education or religion rather than whether they’re trying to come legally, or who are more threatened by immigration when reminded of people burning flags.
In a sense, this is the essence of conservatism — it’s certainly one of the ways that conservatism’s own intellectual historians, including the philosopher Russell Kirk, have defined the tradition.
Conservatism is the defense of “ordered liberty” — the understanding that social order is both an obligation upon individuals to uphold and the responsibility of the government to enforce. It’s the idea that security and liberty aren’t in conflict, because security (physical safety and respect for property) must be guaranteed for people to be meaningfully free.
Most of the time this affinity for order operates in concert with a respect for the rule of law, or at least independent of it. But when law is only important as a weapon to uphold order, there are times when the fetishization of legal processes will seem to either miss the point or be actively bad for society.
Autonomy isn’t for investigators — it’s for the people beating back disorder on the front lines
One of the most distinctive traits of the Trump administration, rhetorically, has been its championing of front-line law enforcement officers as archetypal American heroes.
President Trump, at a memorial service for fallen officers in May, promised to support law enforcement just as they’ve supported him. His chief of staff, John Kelly — who, in his own remarks at the May candlelight vigil at which Sessions also spoke, called law enforcement officers “the best of our country” — has accused politicians and journalists who question whether Immigration and Customs Enforcement agents are really deporting only serious criminals, or whether Customs and Border Protection agents are being too aggressive in detaining people in airports, of undermining not only agent morale but public safety.
And then, of course, there’s Sessions, who’s directed his agency to put on hold any attempts to subject police departments to federal consent decrees for civil rights violations. Sessions has readily admitted that he didn’t read the Obama administration’s reports on systematic violations of residents’ rights in Ferguson, Missouri, and Baltimore, Maryland. But he nonetheless maintained that such reports were useless anecdotes that used a few bad apples to besmirch the reputations of a heroic profession.
At the vigil for fallen officers, Sessions concluded his remarks by directly addressing current officers: “We have your back, and you have our thanks. I believe it is one of the highest callings of my job to call attention to your successes and to encourage our fellow citizens to support you in your difficult and dangerous work. As long as I am attorney general of the United States, the Department of Justice will have the back of all honest and honorable law enforcement officers.”
He said this, for the record, at the conclusion of a week in which the Trump administration, the Department of Justice, and Sessions himself had shown less than full support of one very important law enforcement officer: FBI Director Comey. While Sessions’s own role in the decision to fire Comey remains unclear, it’s apparent, at this point, that Sessions and the DOJ were brought in to provide a post facto, legitimate-sounding justification for Trump’s decision to fire Comey over the Russia investigation — to provide a rule-of-law cover to a decision that disrespected it.
If the purpose of supporting law enforcement is to protect the social order, though, the Trump/Russia investigation might seem overblown at best (and an attempt to dislodge the president and disrupt his agenda at worst). Furthermore, the independence of the FBI and its director doesn’t seem like a cardinal value worth upholding — because law enforcement is supposed to be a tool of the state to promote order and punish disorder.
In fact, the Trump administration has done plenty of things to show law enforcement officials which laws to enforce most aggressively. Under Sessions, US attorneys have been directed to actively pursue low-level immigration offenses, spend more time going after drugs and guns, and charge drug offenders more harshly. Spending that much time on those offenses will necessitate spending less time on white-collar crimes and regulatory offenses.
And the campaign against “sanctuary cities” that both Sessions’s and Kelly’s departments are pursuing is designed, at root, to reduce the autonomy of local police chiefs who don’t believe that actively helping the federal government round up unauthorized immigrants will aid public safety in their communities.
Extending so much autonomy to line officers, while giving detailed instructions to prosecutors and investigators, is only hypocrisy if you think autonomy of law enforcement is intrinsically important. If you think the purpose of law enforcement is to punish disorder, then telling investigators what violations of the law are most important is a natural part of the attorney general’s job. And if you believe that a “thin blue line” of heroic men and women is all that protects the quiet majority of citizens from the anarchy and predation of a criminal underclass, it makes all the sense in the world to allow them to do whatever is necessary to fight the wrongdoers and protect the citizenry.
Trump is reminding us the rule of law is only as strong as the ones enforcing it
Donald Trump is hardly the first American president, and Jeff Sessions is hardly the first AG, to think that a particular vision of society is more important than following the prescribed processes to get there.
FDR tried to pack the Supreme Court. Nixon — the last president whose rhetoric was as heavy on “law and order” as Trump’s is — covered up a burglary of the Democratic National Committee’s offices by thugs in his administration’s indirect employ.
The rule of law, on its own, is wan and procedural. It is not in itself sufficient to determine what the right thing to do is, any more than math can teach you how to treat other people. But when political debates are about different visions of society, and the federal government has tremendous powers that can be harnessed to those visions, the rule of law helps ensure that the shifts from one administration and ideology to the next aren’t too violent — that the vast machinery of state can’t be vertiginously swung back and forth, placed wholly in the employ of a particular vision.
Prior presidents, for the most part, have been the sort of people who respect existing state institutions (after all, they’ve been the sort of people who succeeded well enough within them to become president). And even if they haven’t (like Nixon), they’ve acted in public as if they have — they’ve been worried enough about the public or congressional backlash that might come with sitting too firmly in their own righteousness.
That’s an important check on presidential charisma and power. It’s prevented chilling effects within the federal government from deterring people from going about their business. It’s upheld the idea that the law is more powerful than any one man.
Donald Trump doesn’t believe in lip service. He sees no reason to pretend that there was a law higher than himself in firing James Comey, who served, after all, at the pleasure of the president. He sees no contradiction between announcing, with a shrug, that he didn’t care about the outcome of a Justice Department report when it came to making the decision to fire the FBI director one week, and promising a group of law enforcement officers that he has their back the next.
Trump is tearing off the mask of liberal proceduralism, reminding everyone that law is only powerful because it’s enforced by men — and demanding respect on behalf of those men, whether they’re police officers or Trump itself. It’s both accurate and intemperate. And it’s one of those fictions of the modern state that it’s not going to be easy to rebuild.