There was never any mystery about Donald Trump’s ignorance of the Constitution or his disdain for the rule of law. He has made it clear again and again that he views the presidency—when he holds it, that is—as nothing less than an autocracy, where he has the “absolute right” to do anything that strikes his fancy.
As far back as June 2016, I wrote a column here on Verdict warning that Trump’s candidacy foretold “the Beginning of the End of Constitutional Democracy in the U.S.” I soon followed that up with a column arguing that even a Trump loss in that election (which at that time seemed all but certain) would not end the constitutional threat, because Republicans—even those who had not yet bent the knee to Trump—hated the Democrats so much that they were willing to do anything to hold power.
We would do well to recall, moreover, that all of this was before Republicans rolled over on the Access Hollywood tape, Trump’s threat not to accept losing the 2016 election, Charlottesville, the Muslim ban, the Kavanaugh nomination, the fake state of emergency to divert funds to build a border wall, and the ten crimes that Robert Mueller laid out in his report (which was anything but an exoneration).
Oh, and of course, it was long before Republicans decided that coercing an ally to make up politically useful falsehoods about Joe Biden—and then completely obstructing Congress’s investigation—was just fine, and that hearing witnesses in an impeachment trial was too much of a bother.
While I did not predict every detail correctly back in 2016, the overarching predictions of those columns have sadly turned out to be spot on. Last week, I wrote the first in what will become a series of columns exploring how living in an autocratic America will affect various groups of people. I started with the people who work for the federal government (or for government contractors), who obviously are first in line to have their lives turned upside down by a President and a Senate majority who have no use for professional expertise and who will punish anyone who exercises independent and neutral judgment.
In future columns, I will discuss how post-constitutional America will be different for those who work in the media, for people of color, and for everyone (even those who exalt Trump) whose lives will be changed for the worse as we see the rule of law abandoned.
In today’s column, however, I will take a slightly different approach. Rather than discussing how life will change for various groups of people in America, I want to engage in informed speculation about how the legal system in the United States will look in a few years. Will this country become, as so many worried voices have recently warned, a “banana republic”? Or will it instead create a system of what I will call “legalistic lawlessness”?
The Banana Republic Scenario
Trump’s recent intervention into the Roger Stone case, pressuring prosecutors to reduce the recommended sentence that the convicted felon should receive, set off alarm bells nationwide (and led career prosecutors to remove themselves from the case, with one resigning outright).
Trump has now, in his characteristically blustering way, said: “I’m actually, I guess, the chief law enforcement officer of the country.” He has decided that he can do anything, especially because he wrongly thinks that Article II of the Constitution gives him absolute power. As my Verdict colleague (and Dean of the University of Illinois’s law school) Vikram Amar wrote earlier this week, that is in a trivial sense an accurate statement of the bare bones meaning of the Constitution, but that open-ended power has generally been constrained by norms and, ultimately, by the threat of impeachment, conviction, and removal from office.
But what does a country look like when the President has no use for norms—or anything else that might stop him from indulging his every whim—and when his party has given him good reason to believe that they will never, ever convict him of anything? What happens when the President simply thinks that he is not merely above the law but that, in Richard Nixon’s infamous words, “when the President does it, that means it is not illegal” at all?
And who can forget the shocking theory offered by Trump’s impeachment attorney Alan Dershowitz, who said that even if a President tries to cheat to win an election, that is not impeachable if the President thinks that his election is for the good of the country? As Dean Amar concluded in his column, the people are supposed to have the final say on who is President; yet Trump’s defenders say that even democracy itself can be corrupted without constitutional consequence.
One can see, then, why the image of the banana republic occurred to so many people in recent weeks. This is starting to look like a country in which a corrupt dictator holds power by abusing the legal system in an arbitrary way, punishing his enemies and shielding even the guiltiest of his friends. It is rule by impulse and caprice, throwing off the veneer of any regular order, due process, or legal constraint.
Legalistic Lawlessness Comes Next
Trump himself clearly prefers the banana republic model, and it is difficult to imagine him agreeing to any constraints on his behavior. Even so, it is possible to be lawless while still pretending to live under the rule of law. Even while Trump is still around, but especially after he is gone (for whatever reason), I suspect that Republicans will start to build a legal system that has the earmarks of constitutional democracy but that in fact accomplishes the same arbitrary and unjust ends as the banana republic approach.
There is a virtually endless list of examples from history of legalistic frameworks that were designed to produce and protect injustice. When the law of the land says that human beings can own other human beings, for example, the law is marshaled to bring escaped “property” back to its legally empowered owners.
The height of insanity in pre-Abolition America was, of course, the Dred Scott case. There, the highest court in the land solemnly followed an internal logic that said that a slave’s claim to have been freed was simply not judicially cognizable, because slaves do not have standing to sue to prove that they are not slaves. A century later, Joseph Heller captured the core insanity of that self-negating logic in Catch-22.
What we now know as the Jim Crow era was in fact a legal system (backed by the use of terrorist tactics) that made it impossible for justice to be done. Changing the rules of contract, property, elections, and especially the criminal law made it possible for the cogs in the machine of injustice to simply fulfill their roles and feel that they had followed the rules. But that cannot be called justice, because it boiled down to saying “the white person always wins, and the black person always loses, no matter the facts.” South Africa’s reviled apartheid system took that to an even more despicable level.
Indeed, many of the most monstrous examples of state-sponsored injustice were built around the pretense of legalistic order. Nazi Germany and the Soviet Union did not simply allow arbitrary actions by state actors—or not only that. Both regimes held legal proceedings (darkly satirized in novels such as Kafka’s The Trial) that made it appear that those were not banana republics.
It is, indeed, generally a priority for lawless regimes to dress up their actions in the garb of blind justice. The Nazis took great pains to document everything that they did and to organize their records, showing an affinity for law-and-order thinking without the bother of justice.
And to be clear, it is not only history’s most notorious regimes that try to pretend to be something other than cults of personality. Garden-variety despotism can readily be presented to the world as justice, as we have seen recently in the whitewash of the murder of the journalist Jamal Khashoggi. It was important to the perpetrators of that crime to pretend to have investigated it and to have “done justice under the law.”
To be even more clear, I am not falling into the standard-for-the-internet trap of saying that everyone I disagree with is a Nazi or a commie. I invoke those extreme historical aberrations simply to say that even the most horrific injustices can be perpetrated within a system that, by design, does not look like a banana republic.
Although it is not inevitable that a banana republic will find itself mutating into legalistic lawlessness, it does happen frequently. And as I noted above, I suspect that Trump’s Republican enablers will busy themselves for the next few years with the project of making the American system look less like Trump’s approach of ruling by impulse and more like a system of constitutional order under the rule of law.
The Rule of Law in a Lawless State
Perhaps it is because I approach these questions as a law professor, but even those not trained in the law will surely have noticed that the Republicans love to wrap themselves in the Constitution. The term “constitutional conservative,” in fact, was coined to describe people like Senators Ted Cruz and Mike Lee, who hold themselves out as the arbiters of constitutional correctness. They inveighed endlessly against former President Barack Obama’s supposed constitutional fecklessness, saying that the President is “not a king.”
Now, of course, those same people have no problem at all with anything that Trump has done. One might think, then, that they would be willing to say that there is no reason even to bother with legalistic lawlessness, not when Trump has bullied them all to submit to his open transgressions.
Yet there is something comforting about hiding behind legalisms that these conservatives claim to hold dear. Part of it, I think, is that it allows them simply to feel smart. Doing the mental gymnastics necessary to overturn the near-unanimous act by Congress of re-authorizing the Voting Rights Act in Shelby County v. Holder, for example, can be a very enjoyable kind of sophistry—a skill that many conservatives have taught each other at the best law schools in the country.
Even holding open a Supreme Court seat, as well as hundreds of lower court judgeships—naked power grabs that even the best efforts at sophistry could not legitimize—serves the ultimate purpose of making the system look legally legitimate. When five Supreme Court justices said that Trump can bar people from entering the country without the courts even being permitted to consider the plain evidence of his bigoted intent, Republicans had achieved their goal without having to simply shut down the courts, as banana republics do.
But why am I calling this legalistic lawlessness, rather than simply a legal regime that I happen to think is regrettable on policy or normative grounds? The answer is that the regime that Republicans are in the midst of creating will not constrain anything that they want to do. That is, it will not be John Adams’s immortal vision of “a government of laws, not of men,” because the supposed limitations that the rule of law provides can be stripped away through doctrines such as standing, justiciability, and so on, along with new statutes that simply enshrine injustice into the law.
What makes this lawless, then, is that an impressive-looking legalistic framework will not be a constraint on the people who run the country. There will be no rule of law, because the law will always be manipulated in an ends-oriented way. Just like in a banana republic, the President and his supporters will be able to do whatever they want.
As we enter our impending post-constitutional era, of course, there will be fewer and fewer judges even willing to consider ruling against the Republicans’ wishes, simply because the courts are being packed with Trump loyalists. Those remaining judges who wish to render independent legal judgments, meanwhile, will discover that the laws that they are sworn to uphold have been changed in ways that force the judges to do what Trump’s supporters want them to do, all with the gloss of legality.
Imposing one-party rule with noncompetitive elections will be an ugly business, but there are ways to make it seem utterly innocuous. Innocuousness is not Trump’s style, but there will be reasons for Republicans to pretend that we are not living in a banana republic—even though in reality we will be.