Trump Doesn't Merely Violate the Law. He Aims to Destroy it.

In yet another example of how each of Donald Trump's outrageous acts distracts attention from the previous outrageous act, yesterday, which ought to have been the occasion for a solemn remembrance (or, in MAGA-world, celebration) of the fifth anniversary of the January 6, 2021 assault on the U.S. capitol, was mostly taken up with discussions of the fallout from Saturday's military intervention in Venezuela. I myself fell into the trap, devoting yesterday's blog post to the Trump administration's invocation of the Monroe Doctrine, rather than reflecting on the remarkable fact that the president who inspired mob violence in an effort to overturn a legitimate election was returned to power.

Were I to devote a full essay to remembering the Insurrection, I might title it something snarky, like "Susan Collins was right. Trump learned his lesson." One of my co-bloggers or I might write such a blog post in the future, but today I want to talk about the Insurrection in a larger context to make a point about the relation of Trump and his administration to the law. 

Roy Cohn, Donald Trump's mentor in all things related to the law, famously said "I don't care what the law is; tell me who the judge is." Stated in the abstract, Cohn might have been expressing a relatively mainstream legal realist view. After all, Cohn's statement is not that different from what Oliver Wendell Holmes, Jr. (a proto-realist) said in The Path of the Law: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."

In truth, I don't believe that Cohn was expressing a legal realist view. Legal realism is most accurate as an account of apex courts, which are not strictly bound by precedent and whose dockets reflect selection bias for areas in which the law is under-determinate. Cohn was as often discussing trial judges, and while they have considerable discretion with respect to admission of evidence and receive deference with respect to factual findings, Cohn's suggestion that the law doesn't matter goes beyond legal realism into something more like cynicism or even corruption.

Whatever views Cohn might or might not have held about the nature of law, what Trump learned from Cohn would have been much less subtle. Trump learned that the law doesn't matter; power does.

Or so the conventional wisdom goes. I myself have sometimes characterized the Trump regime as "lawless," as for example, in this blog post in April of last year regarding Kilmar Abrego Garcia. However, I have come to the view that "lawless" is too generous a description of the second Trump administration. "Lawless" implies that the administration disregards the law, more or less following Cohn's approach. But the second Trump administration does worse: it undermines the law. Its aim is to break the law.

In common usage, "breaking the law" is synonymous with violating the law. I'm suggesting something different and more literal. When a common criminal commits an act of burglary, say, and is apprehended, tried, convicted, sentenced, and imprisoned, that process vindicates the law. The burglar violated the law; the legal process responded. The law against burglary is arguably strengthened, as the criminal's punishment publicizes the conduct's illegality and serves a general deterrent function. To break the law, as I'm using the term here, is to violate the law in such a way as to weaken it.

In yesterday’s essay, I argued that Trump, Secretary of State Marco Rubio, and US Representative to the UN Michael Waltz have invoked the Trump version of the Monroe Doctrine (which I refuse to call the “Donroe Doctrine”) to explain the US military incursion into Venezuela, but that, under international law, it provides no legal justification for the use of armed force. That is not merely an example of ignoring the law, however. In offering what amounts to might makes right as a justification for armed intervention on the territory of a foreign sovereign, the Trump administration aims to displace the international law embodied in the UN Charter with an entirely different regime. As Oona Hathaway wrote in an op-ed in yesterday's NY Times, the Venezuela operation was a "blatant assault on the international legal order." Not a mere violation of international law; an assault on that order that threatens to break it.

Consider other examples of Trump's efforts to break the law. On his first day back as president last year, Trump pardoned all of the January 6 insurrectionists, including those convicted of violently attacking Capitol police officers. The pardons rewarded people with whom Trump identified and who, he claimed, had been treated unfairly, but they did more than that. The sweepingly inclusive pardons sought to nullify the law's condemnation of violence as a political tool. They also sent a message to Trump's standby army of brownshirts that they need not fear the law, because loyalty would be rewarded with pardons.

Or consider Defense Secretary Pete Hegseth's Letter of Censure and ensuing opening of proceedings against Senator Mark Kelly in response to Kelly's statements that members of the U.S. armed forces are permitted to refuse to obey unlawful orders. Hegseth's actions are illegal because unconstitutional; they aim to censor speech that is not only protected but uncontroversially true. Speech by active duty military personnel and perhaps even retired officers like Kelly may be less protected than speech by civilians with no military ties, but where the speech at issue is part of the training of U.S. troops, it can hardly be the basis for disciplinary action.

In seeking to punish a U.S. Senator for reminding U.S. military personnel that they are not obligated to obey unlawful orders, Hegseth is not merely violating the First Amendment. He is trying to break the Uniform Code of Military Justice insofar as it establishes rules and standards governing conduct. To fill the resulting legal vacuum, Hegseth wants a system of absolute loyalty to the chain of command, running through him and ultimately Trump.

That same approach characterizes Trump's arbitrary firings of members of independent agencies despite their good-cause removal protection. To be sure, the Supreme Court will very likely rule in Trump v. Slaughter that good-cause removal protection is unconstitutional (except as to the Fed, because . . . reasons). I think it will be making a serious error in so ruling, but if it does, that will mean that Trump's firings will not have been illegal. Trump won't have violated the law.

However, Trump nonetheless will have broken the law--in particular, the legal regime wherein Federal Trade Commissioners and the like take their orders from the laws Congress has enacted. In its place, Trump aims to erect a regime in which federal officers are personally loyal to him. One can dress that regime up by calling it the unitary executive theory, but it is ultimately nothing more than rule by the strongman in place of the rule of law. The fact that the Supreme Court seems eager to assist Trump in this aspect of his campaign of law breaking is no comfort. It merely makes the Justices accomplices.

-- Michael C. Dorf