President Trump concluded his first one hundred days in office this past weekend. Although customary, this is an admittedly arbitrary milestone by which to measure any presidency. Nonetheless, taking stock at this point makes sense because one hundred days suffices at least to provide a rough sense of how a president will behave over the course of four or eight years. Moreover, a president who accomplishes little during the honeymoon period is unlikely to achieve much during the balance of his presidency.
Judged by almost any conventional measure, President Trump’s first hundred days were a failure. Domestically, he signed no major piece of legislation, despite pushing Congress to repeal and replace the Affordable Care Act (ACA). His two main executive orders on immigration, his signature issue, have been justifiably blocked by the courts.
Meanwhile, Trump’s foreign policy actions have thus far consisted chiefly of gratuitously insulting foreign leaders and waffling on campaign promises (such as labeling China a currency manipulator and keeping the United States out of the Syrian civil war). The first hundred days produced a frenzy of activity, but little in the way of achievement.
In evaluating Trump’s early performance, it is easy to compile a catalogue of horrors, as numerous law professors recently did in an NYU Law School feature and in an online symposium in the Illinois Law Review, each according to his or her respective area of expertise. To make sense of the Trump administration, however, requires some framework for organizing its policies and modus operandi.
Numerous frameworks could be offered: corruption; hypocrisy; norm-breaking; bigotry; and more. Focusing on the Trump administration’s approach to law, I shall highlight the administration’s incompetence and Trump’s efforts to delegitimate the courts and press as sites of opposition.
Not Just Personal Incompetence
One occasionally reads that Donald Trump ran a brilliant presidential campaign that tapped into a previously unrecognized strain of right-wing populism. The evidence for this view is sparse. Trump lost the popular vote and, despite his frequent boasts about “easily” winning the Electoral College, barely scraped out a victory thanks to Hillary Clinton’s unpopularity, FBI Director James Comey’s poor judgment, and Russian collaboration with WikiLeaks, possibly abetted by one or more members of the Trump campaign team.
But even if one assumes that there is some truth to the claim that Trump is a political genius, that genius does not extend to governing. His first hundred days have been characterized by incompetence.
Let us set aside the astounding incompetence of the man himself: the beliefs that Frederick Douglass is alive and that Andrew Jackson could have averted the Civil War; the spelling that would embarrass a fourth grader; the stunning assessment that despite having touted a “terrific” (but never specified) plan to replace the ACA, “nobody knew that healthcare could be so complicated.” Beyond Trump’s personal incompetence, we see legal incompetence throughout Trump’s administration.
Trump’s initial effort to make good on his effort to ban Muslims from entering the country by thinly disguising his intentions with a country-of-origin ban was rolled out with essentially no advance warning to the federal agencies charged with administering it. This led to chaos at airports, as the administration went back and forth on whether the ban applied to green card holders and excluded well-vetted families bringing their young children to the U.S. for medical treatment.
The original ban was obviously aimed at Muslims, as it included express favoritism for members of minority religions—which, in context, meant Christians. When that ban was blocked, the administration replaced it with a likewise flawed ban that was also tainted by the administration’s unconstitutional intent to disadvantage Muslims on account of religion. Trump and his minions greatly aided the bans’ challengers by publicly and repeatedly connecting them to his campaign promise to adopt immigration policies that discriminate on the basis of religion.
Another of Trump’s efforts to please his anti-immigration base was an executive order threatening to withhold funding from so-called sanctuary cities. Any minimally competent lawyer could have told the administration that the order was unconstitutional because, as commentators across the political spectrum noted, only Congress, not the president acting unilaterally, may permissibly condition the provision of federal funds to states and localities on their willingness to enforce federal law. Various versions of that principle have been repeatedly affirmed in Supreme Court opinions written by conservative justices (for example in 1987, in 1997, and again in 2012). The order nonetheless ignored this clear limit, leading a federal district judge to invalidate it last week.
One can only conclude either that Trump does not listen to knowledgeable lawyers before adopting policy or that he does not have competent lawyers working for him.
The latter possibility is clearly false if we look at longtime government lawyers in the Department of Justice and other federal agencies. Even the newcomers to these posts tend to be well qualified. By effectively outsourcing personnel decisions for high-ranking legal jobs to the Federalist Society, Trump has managed to find highly talented, albeit deeply conservative, professionals. That approach also accounts for Trump’s one domestic policy success: the nomination and confirmation of Neil Gorsuch to the Supreme Court.
However, Justice Gorsuch remains outside the executive branch. Meanwhile, good legal counsel is only useful if followed. And Trump appears mostly driven by his own id and his inner circle of advisers, which lacks legal expertise.
To be sure, Trump’s 36-year-old son-in-law and confidant Jared Kushner has a law degree from NYU, but Kushner has no real experience practicing law. Even if we assume that Kushner is a wiz-kid who learned all the law he needs to know to advise the president when he was still in law school (and while he was simultaneously obtaining an MBA), he is probably too busy raising his three children, drawing on private-sector ideas to reform the Department of Veterans Affairs and the rest of the federal government, and brokering peace between Israel and Palestine to spend much time parsing the fine print in legally dubious executive orders.
Trump—who often claims that he knows and hires “the best” people—in fact has no ability to judge competent lawyers (or competence more generally). Consider that the lawyer Trump hired to defend him against a charge that he incited violence against peaceful protesters at a campaign event cited Clinton v. Jones—the case that denied President Clinton temporary immunity against a lawsuit arising out of pre-presidential conduct—in support of the legal position that Trump has the very immunity that was denied to Clinton. This is completely backwards. It is like citing the voyage of Magellan as evidence that the world is flat. As Professor Neil Kinkopf explains, this is sanctionable incompetence. But as an exemplar of the Dunning-Kruger effect, Trump can detect neither his own incompetence nor the incompetence of others.
Looking at the early record of incompetent lawyering on Trump’s behalf, it is tempting to feel relief. Were Trump listening to good legal advice, he might be more effective in pursuit of his wicked goals, which include: imposing wholly unnecessary pain on immigrants and their families; eliminating important environmental, financial, and other regulations; and generally redistributing America’s wealth to the super-rich. Incompetence can be the enemy of effective evil, and thus a blessing.
Whether the legal and other forms of incompetence of Trump and his administration ultimately mitigate their wickedness remains an open question. In characterizing Trump’s approach to law, I would put delegitimation as a close runner-up behind incompetence. Whenever Trump loses in court, he attacks the personal integrity of the judges who ruled against him or even the legal system as a whole.
Those attacks will not be effective in the courts themselves. You don’t work the refs by insulting them.
However, the courts are not Trump’s exclusive or even primary audience. If he can persuade enough people that judicial opposition to his policies stems from mere ideological disagreement, he can rally his supporters by shifting blame. Because the general public (quite understandably) lack legal expertise that would enable them to evaluate either the courts’ opinions or Trump’s attacks on judges, they must depend on the media for context. And of course, when the media hold Trump accountable, he tries to delegitimate them as well, labeling straightforward fact-checking “fake news.”
Accordingly, whether the legal incompetence of the Trump administration mitigates its intentional awfulness will depend on how many rubes continue to be fooled by Trump’s con and, perhaps more consequentially, how many conventional conservatives with no love for Trump continue to think they can effectively harness his unconventional antics to their own ends without irrevocably tarnishing themselves.