Trump’s Law and Order Versus the Rule of Law

On the stump and during his acceptance speech at last week’s Republican National Convention, Donald Trump declared himself “the law-and-order candidate.” In using this term, Trump signals support for the vigorous use of force against potential criminals, terrorists, and undocumented immigrants. Trump’s law and order also carries a not-at-all-veiled racial sub-text. He will use the law to impose order on “them” (undocumented immigrants, African Americans protesting racially biased policing, Muslims) in order to protect “us” (white Americans).

Trump’s law-and-order message does not just carry racist overtones. It also rests on falsehoods. Despite some local fluctuations, the violent crime rate in America remains substantially lower than it has been in decades. Meanwhile, undocumented immigrants account for a tiny fraction of the violent crime that does occur. And Trump’s vilification of all Muslims because of the terrorist acts of a tiny minority is both profoundly unAmerican and counter-productive.

Fact-checking Donald Trump is both child’s play and beside the point. His strong-man campaign rests not on facts or sober policy analysis, but on scaring people into trusting him to take tough—albeit mostly unspecified—action. For example, when FBI crime statistics were cited to debunk Trump’s claims that we are re-living the crime wave of the 1960s-1990s, his campaign manager questioned the FBI’s credibility because its director, James Comey, failed to recommend that Hillary Clinton be prosecuted for her use of a private email server while Secretary of State. If Trump predicted sunshine and it rained instead, his campaign would blame Clinton’s emails, the media, Mexico, Muslims, or Black Lives Matter.

Nonetheless, Trump’s proclamation of law and order should not go unexamined. After all, anyone who is not an anarchist favors both law and order. So what, exactly, is wrong with “law and order”? To answer that question, we can usefully distinguish between the idiomatic use of “law and order” and the cherished value of the rule of law.

Rule of Law

Experts disagree about the precise scope of the concept of the rule of law. As legal philosopher Jeremy Waldron has written, the rule of law is “a multi-faceted ideal.” Its facets include certainty, predictability, even-handedness, impartiality, procedural fairness, and more.

Some aspects of the rule of law can come into conflict with one another in concrete cases. For example, strict application of rules without the occasional creation of ad hoc exceptions fosters predictability, but may undermine even-handedness when the rule maker fails to anticipate how a one-size-fits-all rule unfairly lumps together some people who are not similarly situated. Accordingly, just as reasonable people can and do disagree over what any particular law requires in close cases, so they can disagree over what the rule of law requires in such cases.

But just as the existence of twilight does not mean that there is no distinction between day and night, so the indeterminacy around the edges of the concept of the rule of law does not render it meaningless through and through. At its core, the rule of law stands in contrast to what is sometimes called the rule of men. As Waldron explains, most fundamentally, the rule of law requires “that people in positions of authority should exercise their power within a constraining framework of public norms, rather than on the basis of their own preferences . . . .”

Presidents and the Rule of Law

During various episodes in American history, presidents have said or done things that arguably violated rule-of-law principles. For instance, in response to a Supreme Court decision in favor of the Cherokee, Andrew Jackson purportedly said (but probably did not actually say): Chief Justice “John Marshall has made his decision, now let him enforce it.”

More sympathetically, Abraham Lincoln argued that even if he lacked the authority to suspend the privilege of the writ of habeas corpus without an act of Congress, the nation’s very survival depended on temporarily sacrificing the rule of law. In an 1861 address to Congress, he famously posed the following rhetorical question: “are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”

Trump Echoes Nixon

In his own inartful way, Donald Trump has suggested that, like Lincoln before him, he should be permitted to take liberties with the Constitution in order to save the nation. In a recent interview Trump defended his proposal to stop immigration from (unspecified) “terrorist” countries with the claim that the Constitution “doesn’t necessarily give us the right to commit suicide as a country.” As law professor Josh Blackman has noted, this line paraphrases a famous dissent by Supreme Court Justice Robert Jackson. More broadly, the notion that “the Constitution is not a suicide pact” is frequently invoked by people who propose sweeping action that seemingly violates the Constitution on grounds of national emergency.

Trump’s implicit suggestion that the nation faces an existential crisis of the sort that confronted Lincoln cannot be taken seriously. Indeed, as noted above, there is much less violent crime in America now than there was the last time that a GOP nominee ran as a law-and-order candidate. Yet if Trump’s echo of Richard Nixon is unwarranted by the facts, it is also chilling.

Nixon abused the office of the presidency by seeking to use its public powers for his own personal and political ends. He compiled an “enemies list” of political opponents and journalists deemed unfriendly, and sought IRS audits, denial of government contracts, and prosecutions based on the list.

But at least Nixon knew enough to try to keep his enemies list secret. Trump, by contrast, has made no effort to disguise the fact that he would use the power of the presidency to settle scores and advance his own personal agenda. At the Convention, New-Jersey-Governor-turned-Trump-footman Chris Christie incited the GOP faithful with a speech purporting to try Hillary Clinton for supposed crimes. It should go without saying, but I will say anyway, that in mature democracies, candidates for office do not threaten to jail their political opponents.

From Nixon to Trump

To be sure, one can favor law and order in the sense of tough-on-crime policies without threatening the core of the rule of law. Yes, our two most aggressively law-and-order presidential candidates—Nixon and Trump—also undermined the rule of law by abusing (in Nixon’s case) or promising to abuse (in Trump’s case) the powers of the presidency for personal goals. But maybe that is a mere coincidence. Perhaps a platform of law and order does not inherently threaten the rule of law.

Perhaps, but I am skeptical. Even after he left office, Nixon famously displayed a remarkable view of the scope of presidential power when he told David Frost that “when the president does it that means that it is not illegal.” Although technically speaking about foreign affairs, where there are fewer constitutional constraints on presidential power than domestically, Nixon’s sweeping statement was consistent with his record on domestic affairs as well.

Trump, meanwhile, confuses the public with the personal in other ways. He has thoroughly mixed his campaign with his business enterprises. For example, his campaign rents space from his businesses. Meanwhile, Melania Trump’s plagiarism from Michelle Obama occurred because a Trump Organization writer with no relevant experience was given duties ordinarily assigned to political professionals. And most troublingly, Trump has shown no interest in ensuring that his business interests would be run separately from the White House should he win the election. Like Nixon before him, only more so, Trump seems to view the presidency as personal spoils for the victor, rather than a public trust.

Rule by Law

Might the “law” part of Trump’s promise of law-and-order nonetheless support some of the ideal of the rule of law? Don’t count on it. Although “law and order” and “rule of law” both contain the word “law,” the concepts are quite different, as illustrated by Trump’s history with the legal system.

Trump appears to be both the most litigious person and the most sued person ever to be nominated for the presidency by a major party—and by a very large margin. A USA Today investigation last month found that Trump or his companies were the plaintiff in roughly 1,900 lawsuits and that Trump was the defendant in roughly 1,300. What could possibly explain these numbers?

The short answer is that Trump likes to use the law as a cudgel, frequently filing or threatening baseless lawsuits to intimidate those who cross him—as he did just last week when his lawyers sent a cease-and-desist letter to the co-author/ghost-writer of Trump’s The Art of the Deal for daring to go public with an expression of remorse for having helped create the Trump myth.

Meanwhile, Trump so often finds himself a defendant because of his standard business modus operandi: He stiffs contractors, lenders, and others whom he owes money, hoping that they will not have the wherewithal to sue. The fact that Trump has persisted in this unscrupulous business practice for decades suggests that he often gets away with it. Thus, the 1,300 lawsuits against him may substantially understate his contempt for his legal obligations.

Taken together, Trump’s quickness to bring or threaten suit and his disregard of his legal obligations paint a picture of someone who regards the law as a useful tool to coerce others but not a restraint on his own behavior.

As a private businessman, his attitude is despicable but the damage is limited. Savvy actors—like the major banks that no longer lend Trump money—can guard against Trump’s chicanery. Caveat trumptor.

Yet, should Trump become president, no one would be safe from his toxic mix of bullying through law and acting above the law. He would replace rule of law with what Chinese scholars call rule by law.

What’s the difference? Authoritarians use law to rule over people but do not subject themselves to law’s constraints.

In borrowing a distinction that figures in debates over the law’s place in the People’s Republic of China, I realize that I am comparing Trump to (nominally communist) authoritarians. I do not make the comparison lightly. Trump has publicly stated his admiration for brutal former dictators like Saddam Hussein and Moammar Qaddafi. He criticized Mikhail Gorbachev for being insufficiently authoritarian by comparison with the Chinese leaders who cracked down on the nascent movement for democracy in 1989.

Thus, calling Trump an authoritarian is understatement, not hyperbole. His conception of law and order is antithetical to the rule of law.

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