Fake rule of law

Michael Goldhaber, IBA US Correspondent

When President Trump invokes the rule of law, he has something quite different in mind.

The US Courts website aptly defines the rule of law as the principle of holding all accountable to public laws that are: ‘Equally enforced’, ‘Independently adjudicated’ and ‘Consistent with international human rights principles’. Hearing minority grievances is also noted as central to the notion. President Donald Trump likes to affirm that ‘We believe in the rule of law’, as he did in a speech to the gun lobby last spring. But the concept that emerges from his use of social media and from his statements is another creature entirely.

Far from equal enforcement, President Trump has routinely called for the jailing of his 2016 opponent, Hillary Clinton, by leading chants of ‘Lock her up’. Before the midterm elections, the President savaged his attorney general for lowering the Republicans’ electoral odds by prosecuting his first two supporters in Congress – Chris Collins and Duncan Hunter – for insider trading and misuse of campaign funds.

The President notoriously demanded ‘loyalty’ from then FBI Director James Comey and expressed hope that he’d let go of the probe into Russian contacts by his National Security Advisor designate Michael Flynn. In a controversial December 2017 interview, President Trump praised former Attorney General Eric Holder for ‘totally protect[ing]’ his President.

‘I have absolute right to do what I want to do with the Justice Department,’ President Trump opined. ‘But for purposes of hopefully thinking I’m going to be treated fairly,’ he explained, ‘I’ve stayed uninvolved’ in the Russia investigation.

I have absolute right to do what I want to do with the Justice Department

Donald Trump
US President

If law enforcement dares to be disloyal, that is, to enforce the law equally against the President, then it is they who threaten the rule of law as it’s defined by President Trump. Thus, on 15 January, the President retweeted: ‘We must stand with the rule of law against the coup targeting @RealDonaldTrump.’

When it comes to the courts, the President again puts a partisan stamp on a non-partisan precept. ‘The Rule of Law is our Nation’s proud heritage,’ he declared last summer. ‘It is the cornerstone of our Freedom. It is what guarantees equal justice – and the Senate now has the chance to protect this glorious heritage by sending Judge Brett Kavanaugh to the Supreme Court.’ After Kavanaugh was confirmed in the autumn, Democrats exercised their right of assembly on the courthouse steps. To which the President tweeted: ‘Republicans believe in the rule of law - not the rule of the mob. VOTE REPUBLICAN!’

To be generous, Trump’s speechwriter may have intended to echo the late Justice Antonin Scalia. In ‘The Rule of Law as a Law of Rules’ (1989), Scalia painted textualism as truer to the rule of law than dynamic interpretation, because it purports to place stricter bounds on judicial discretion. Or perhaps the speechwriter imagined Kavanaugh as a paragon of the rule of law because he is hostile to regulators.

Then White House Counsel Donald McGahn told the Federalist Society that ‘the greatest threat to the rule of law in our modern society is the ever-expanding regulatory state, and the most effective bulwark against that threat is a strong judiciary.’

Whatever he meant by the rule of law in this context, the President has consistently shown a poor grasp of judicial independence. In the 2016 Trump University fraud case, the President assailed Judge Gonzalo Curiel as ‘totally biased’ and ‘very unfair’ on Twitter. On television, he explained: ‘Now, this judge is of Mexican heritage – I’m building a wall!… He’s a member of a society where – you know – very pro-Mexico and that’s fine, it’s all fine, but I think – I think – he should recuse himself.’

In 2017, the President attacked the judges who stayed his travel bans as political – compulsively warning in a series of tweets that they endangered the nation. ‘The opinion of this so-called judge,’ wrote Trump, ‘essentially takes law-enforcement away from our country’; ‘What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?’; ‘The judge opens up our country to potential terrorists and others that do not have our best interests at heart.’; ‘I don’t ever want to call a court biased, so I won’t call it biased...But courts seem to be so political.’

At rallies, he expanded sarcastically on the theme: ‘The courts are not helping us I have to be honest. It’s ridiculous. Somebody said I should not criticize judges. Okay, I’ll criticize judges – to keep criminals and terrorists the hell out of our country’; ‘I have to be nice, otherwise I’ll be criticized for … speaking harshly about our courts. I could never want to do that.’; ‘You don’t think this was done by a judge for political reasons do you?’

The travel and asylum bans stand in special tension with the rule of law, as defined on the US Courts website, because they target minorities and offend international human rights law. But, ironically, border policy has been the primary inspiration for the President’s Twitterstorms on the rule of law.

Even before he was a candidate, @RealDonaldTrump cited the rule of law in 2014 and 2015 in response to the Obama executive order protecting the children of illegal aliens, called ‘Dreamers’, from deportation.

‘If we do not protect the rule of law then we can expect even more illegals to cross the border,’ he tweeted on different occasions. ‘No amnesty. Protect the rule of law!’

In January 2019, the @RealDonaldTrump account retweeted Tom Fitton, who shared a Fox News clip called ‘Tom Fitton: No evidence Trump is Russia agent’.

Within weeks of declaring his candidacy, Trump began to connect this sentiment to his most iconic policy: ‘Respect for the rule of law is at our country’s core. We must build a wall!’ And again: ‘We must have a wall. The rule of law matters.’ In early 2018, the President reiterated the point when ‘sanctuary cities’ declined to assist in deportation: ‘I will not rest until we have secured our borders and restored the rule of law!’ In late 2018, the White House justified the asylum ban under the bolded heading, ‘UPHOLDING THE RULE OF LAW: The Trump Administration is rightfully and fully restoring the rule of law on our southern border’.

Finally, in the apotheosis of Trumpian rule of law, the white supremacist Congressman Steve King urged the President last month to stand firm on the wall even if he must declare an emergency. King’s tweet had the tone of an entreaty to ‘Our Father Who Art in Heaven’: ‘Mr. President, if the time comes,’ he wrote, ‘build the whole wall out of concrete. Let it stand forever as a monument to the Rule of Law.’

In framing Democratic immigration policy in opposition to the rule of law, the premise of populist discourse is that executive discretion in enforcement disdains lawful limits on immigration. This is rather rich given the broadening of executive power that an emergency declaration would entail, and given the tension between an asylum ban and US obligations under domestic and international law. But, the more fundamental confusion is between the rule of law and any substantive legal duty. Properly understood, the rule of law is a set of procedural guarantees subjecting everyone – from the head of state to an illegal alien – to consistent laws that are equally enforced and independently adjudicated. Let this President’s Twitter feed stand as a monument to the rule of law’s misunderstanding.

Michael Goldhaber is the IBA’s US Correspondent. He can be contacted at michael.goldhaber@int-bar.org