On Wednesday, as he left the Manhattan courtroom where he is on trial, former President Donald Trump launched a broadside attack on District Attorney Alvin Bragg and Judge Juan Merchan, who is presiding at his trial. What Trump said was scurrilous and dangerous, if by now a familiar part of his effort to discredit American legal and political institutions.
The institutions he seeks to discredit are already in trouble, in part because of what Trump has done. But what Trump says is not the only reason our legal and political institutions are vulnerable to his attack.
America will need to address the problems that cause that vulnerability if it is to survive Trump and Trumpism.
Americans’ mistrust and disillusionment with our legal and political institutions is high. That is why what Trump says resonates with millions of people.
Let’s start with the former president’s attack on Bragg and Merchan.
Trump first quoted Fox News’s Gregg Jarrett, who said, “This trial is now officially a sad and pathetic joke. It’s a crime. Merchan and Bragg are the head clowns. It should be patently obvious to all that the leading Republican candidate for president is on trial not for what he’s done, but for who he is. Trump is the potential nemesis of the Democrats. Bragg loathes him and so does Merchan.”
He then claimed, “The judge hates Donald Trump. Just take a look. Take a look at him. Take a look at where it comes from. He can’t stand Donald Trump. He’s doing everything in his power.”
The assertion that because Judge Merchan was born in Bogotá, Colombia, he hates Trump is, as The Atlantic’s David Graham writes, “More than simple bigotry, Trump’s remarks about Merchan are an attack on the bedrock of the American justice system, part of his assault on the rule of law itself.”
As Graham explains, “The principles of the courts are that judges and juries do their best to set aside biases, and that the adversarial system’s checks and balances ensure fair results more often than not. By suggesting that a judge is irreparably biased simply by virtue of where he was born, Trump seeks to undermine the whole system.”
Large segments of the American public are already primed for that effort. Evidence is plentiful.
In February 2023, an American Bar Association report noted that “Recent polling indicates staggering declines in public confidence in federal courts. Public confidence in state courts likewise appears to be dropping to new lows, with substantially more individuals now viewing those courts unfavorably as providers of equal justice to all.”
And, as The Hill’s Daniel De Vise argues, “Never in recent history, perhaps, have so many Americans viewed the Supreme Court as fundamentally partisan.”
It is hard to counter that view when Justices like Clarence Thomas and Samuel Alito flaunt their political sympathies or when the Court trashed its own precedents on the way to overturning Roe v. Wade. None of this was helped by the Court’s own foot dragging about creating a Code of Ethics for its Justices.
It is no wonder that Gallup finds that only 41% of the American public approved of the way the Supreme Court is handling its job.
And judges themselves are feeling the changing public mood. The National Judicial College asked its members, “Do you think that the public’s esteem for judges has risen, decline, or stayed the same over the last 10 years?“
In response “63% thought esteem for judges had declined over the previous 10 years, 8% thought it had risen and 29% thought it had stayed the same. The latest result translates to a 43% increase in the share of judges who received decline in the public’s esteem.”
That was in 2017. Seven years later, things seem to have only gotten worse.
Though it has gotten less attention, Trump has also frequently criticized Congress. Indeed, just last week Trump lamented, “They are not doing their job. The Democrats are holding everything up.”
When he was in the Oval Office, he went after Congress for failing “to protect the safety and security of the American people” and for not meeting “that responsibility by providing the funding needed to secure the border.” He accused Congress of playing “political games.”
In 2017, Trump denigrated the way the House and the Senate do business. “You look at the rules of the Senate, even the rules of the House,” Trump told Fox News, “but the rule of the Senate and some of the things you have to go through, it’s really a bad thing for the country in my opinion.”
Talking about the filibuster, he argued for “tak[ing] those rules on … because for the good of the nation things are going to have to be different.” He added, “You can’t go through a process like this. It’s not fair, it forces you to make bad decisions.”
He has regularly denigrated individual members of Congress. To take an example that echoes his recent attack on Judge Merchan, in 2019 he said that a group of four minority congresswomen should “go back” to the countries they came from rather than “loudly and viciously telling the people of the United States” how to run the government.
Here again, Trump is playing to a receptive audience.
In recent years Congress has passed many fewer laws than it did decades ago. In 1975, 649 laws were sent to the President for his signature. In 2020, that number was 362.
According to Reuters, “Experts point to several reasons for this. One key factor is an increase in polarization — Democrats and Republicans are farther apart ideologically than they’ve been in the last 50 years…. That’s led to a decrease in bipartisanship, a necessary ingredient for bills to pass in a governing body full of checks and balances.”
Adding to all this are the spectacles of government shutdowns, debt ceiling crises, and childish behavior that are a regular part of the congressional modius operandi.
That is why it is not surprisingly that polls indicate that confidence in Congress, and in our other political institutions, is at historic lows, with only 7% of the public saying that they have confidence in the way Congress does its job. Moreover, in February 2024, 81% of the public actively disapproved of the Congress.
Such public disillusionment offers fertile ground for Trump and for those who would follow in his footsteps. What this means is that even if Trump is defeated in November, the work of addressing the real problems in our legal and political institutions, and restoring public confidence, will remain to be done.