The Rule of Law Won’t Save Us
Donald Trump won't be stopped by the law — in fact, his worst abuses are enabled by it.
Marc Treble / Flickr
As right-wing courtiers go, John Yoo is no small bean. A prolific scholar and professor at Berkeley Law, Yoo has championed a vision of presidential power resembling that of a Hanoverian king. He was also a Justice Department lawyer in the Bush administration, producing such choice gems as a defense of warrantless wiretaps and a greenlight for the US program of state-sponsored torture.
Not exactly the kind of guy you would expect to complain about abuse of executive authority. So when the New York Times published a column by Yoo expressing “grave concerns about Mr. Trump’s uses of presidential power,” it was rather rich.
For the past several months, many legal commentators have added to the litany of slamming President Trump as a threat to the rule of law. But two things stand out in Professor Yoo’s contribution. For one, nearly half of the op-ed is spent defending the expansive, unitary executive Yoo made a career promoting — a “robust vision of the presidency” which, he admits, “supports some of Mr. Trump’s early executive acts.”
Secondly, the criticisms John Yoo makes of Trump’s “more dubious” actions do seem a bit mild. His main gripe is not the substance, but the procedure, of the president’s agenda. Even the immigration ban on seven Muslim countries, as Yoo would tell it, still “falls within the law”; its one potential flaw is that Trump had the nerve to call it what it is — “a Muslim ban.” Yoo rather gives the game away when he says this:
Had Mr. Trump taken advantage of the resources of the executive branch as a whole, not just a few White House advisers, he would not have rushed out an ill-conceived policy made vulnerable to judicial challenge.
Yoo’s op-ed is less interesting as a statement of constitutional theory than as a reminder of something liberals do not like to admit: that the “rule of law” and other bourgeois norms are hardly a good check on presidential mischief. For many decades, presidents were able to exert their worst abuses not despite, but really through, the established rules of our legal order — especially with people like John Yoo on hand to lend them some legitimacy.
So what does it say about our current president when he’s decried by those who turned the country into a land of torturers and snoops? In some ways, Trump’s brand of quasi-authoritarianism is a rupture from past precedents: more vulgar, less crafty, and more cruel. But I can’t help but think back to the dictatorship of Louis-Napoléon, which Marx famously described as being “contained readymade in the [preceding] parliamentary republic. It required only a bayonet thrust for the bubble to burst and the monster to leap forth before our eyes.”
Our constitutional bubble had been filling up for quite some time, bloating with lawless potential. The germ of a Caesar, or a Louis, was swelling up inside it; all it took was a gibbering billionaire to pop it free.
Beating Around the Legal Bush
John Yoo is not the only right-wing scoundrel who’s attempted to save face by disavowing Donald Trump. George W. Bush himself became a liberal darling of sorts when he came out to say he didn’t “like the racism” and “name-calling” you see in Trump’s administration.
On one hand, his point is taken: there is a difference between the cuddly grandpa George, who says “Islam is peace,” and the blithering uncle Donald. But it’s a very low bar indeed if all it takes is to respect the table manners of the ruling elite.
The more you look at it, the more shallow and frivolous their differences become. Trump’s main faux pas is that he breaks the rules of decorum that made otherwise monstrous things sound legitimate.
When Yoo and the Office of Legal Counsel authorized the worldwide torture apparatus, they didn’t quite say that torture would be lawful. They got around it by redefining “torture” nearly out of existence, so that nothing the president ordered would even qualify. By comparison, Trump’s open willingness to say that “torture works” — and his pledge to “bring back a hell of a lot worse than waterboarding” — may seem more alarming. But when it comes to industrialized state violence and abuse, word choice is really a distinction without a difference.
Still, past presidents were usually more circumspect about adhering (or appearing to adhere) to the law. The Bush administration may not have cared that much about legality before they plunged headlong into Iraq, but they did drum up some bad intel to make a spurious case for “preemptive self-defense,” and they did attempt to use some old UN Security Council resolutions (dating to the 1990s) to authorize their invasion.
Likewise, President Obama made creative use of Congress’s 2001 authorization of force against al-Qaeda, which was aimed at states or groups that “planned, authorized, committed or aided” the 9/11 attacks, and stretched it somehow to apply to the Islamic State in Syria.
The Obama administration is perhaps the best example of this legal pussyfooting. As the journalist Charlie Savage described in his book Power Wars, Obama’s lawyers scrambled to provide painstaking legal rationales for all sorts of nasty business: targeted killings, mass surveillance, military intervention, preventive detention. The idea was, in Obama’s words, to “turn the page on the imperial presidency”; the effect was to give it newer and fancier clothes.
So it’s always been there — the recklessness, the cruelty, the power lust, the downright criminality — lurking just beneath the surface. A thin veneer of legal formality made it more presentable, but even then its ugly head would rear from time to time. What sets apart Donald Trump is only his indifference to those norms and rules behind which our rulers’ savagery could hide before.
The Constitutional Dictatorship
“Well, when the president does it,” Richard Nixon famously said back in 1977, “that means that it is not illegal.” What’s impressive about this statement isn’t quite its disregard for the law, but rather its twisted and dangerous interpretation of it. It isn’t the expression of one who wishes to break the law, but of one who thinks the law will let him do it.
The ruling class have always had this strained and two-faced relationship with their own laws. And when they break the rules, so we are told, it’s for our own good. Who can forget Attorney General John Ashcroft’s claim that individual legal rights are “weapons with which to kill Americans”? Power is unleashed, or the rules are relaxed, to protect us from crises real or imagined.
When the penal colony at Guantánamo Bay was opened in 2002, Bush tried very hard to deny his prisoners protection under the black-letter law. He argued that he, as commander-in-chief, had the authority to “suspend” the Geneva Conventions for those dangerous miscreants. Then again, he did say that the United States would be “adhering to the spirit of the Geneva Convention.” But we all know how well that turned out.
It wasn’t simply that our rulers weaseled their way past the law; it’s that they stretched and mangled the law itself to suit their needs. By framing their abuses as lawful expressions of the president’s authority, past administrations embedded their abuse within the framework of the legal order. It wasn’t so much about upholding the “spirit” of the law and breaking the “letter,” as much as twisting the letter in order to break its spirit.
Through generous readings of the law — and often with the help of Congress and the courts — the executive branch consolidated its power, undermining basic human rights and civil liberties along the way. The effect was to build up what Clinton Rossiter called a “constitutional dictatorship”: where dictatorial powers emanate from, and not despite, the legal regime.
That’s because however insincerely, previous presidents were still wedded to the ideal of bourgeois constitutionalism. So even when they strained against the limits of legality, and as their cruelty widened and deepened, they made themselves out to be continuous with the existing legal order. Arguments for the “rule of law” and fidelity to the Constitution were compatible with, and helped to normalize, the constitutional dictator.
Now Donald Trump is sitting at the reins of this leviathan. And yet the looseness of his tongue — when he attacks the judiciary, say, or when he threatens war crimes or invasions — doesn’t sound like it belongs to a man who spends much time on legal theory. Indeed he doesn’t sound like one who cares at all for legal limitations.
It’s no wonder the old guard would be so wary of the new guy. After all the trouble they went through to mutilate the law, Trump comes along and makes it look easy.
The Billionaire Dictator
As early as 1917, Max Weber theorized that every democracy tends toward Caesarism, as parliaments grow dysfunctional and the masses yearn for a charismatic strongman. But it was the Nazi jurist Carl Schmitt who gave a still more helpful account of dictatorship by distinguishing a constitutional (or “commissarial”) dictator from a “sovereign” dictator.
The former is empowered by the existing legal order to break it if required in a crisis or emergency — an authoritarian safety valve, so to speak. A “sovereign” dictator, on the other hand, ruptures the status quo and ushers in a new regime entirely.
What sort of dictator is Donald Trump? It’s clear that he’s inherited the enormous powers of the constitutional dictators who came before him. At the same time, his sheer vulgarity and peurility don’t seem in line with any sense of constitutional fidelity. Just look at his inaugural address, in which he said: “The oath of office I take today is an oath of allegiance to all Americans” — instead of, as it were, to uphold the Constitution. It’s possible he never pondered the significance of that rewording, but it does make one wonder.
Trump has tapped into the dark heart of American anxiety and disillusion at a time when the established order struggles to maintain its credibility and legitimacy. To see a blithering bully who doesn’t fuss around with technicalities and fine print must be refreshing. Trump’s appeal is the appeal of power, unmediated and raw: not the kind that quibbles with definitions of “torture,” but that says of course we’ll torture, because it works.
This is where the fears of a Schmittian sovereign dictator — or even a proper fascist — come in. An authoritarian strongman comes in to shake up the ossified status quo, not simply above the law but entirely outside it. But in Donald Trump’s America, there is no higher authority, no transcendental order, no radical renewal to upend or replace the old. Beneath the bluster and hysterics, there is only the banal, crude logic of a businessman.
He doesn’t even seem especially opposed to the older law: he is in fact extremely litigious, willing to use the law to bludgeon his opponents or to silence them. He thinks of law in terms of use-value, like a business prop or skill.
When faced against a judge who halts his immigration ban, Trump attacks his qualifications: “this so-called judge,” says Trump. “I’d bet a good lawyer could make a great case out of the fact that President Obama was tapping my phones in October.” He tells his followers how to deal with protestors at his rally: “Knock the crap out of them….Just the knock the hell — I promise you, I will pay for the legal fees.”
Trump doesn’t see the law as an object to uphold or to transform, but as an instrument of business, a weapon of the deal. Because beneath the sturm and drang of the new Trump era, there is only the vulgar misrule of a capitalist.
The pathologies of Trumpism were always there, latent and malignant, feeding on the American fetish for maximal power. Trump does what previous rulers had always done, but in a fuller, more open and cavalier way. In that sense, Trump’s America isn’t quite the birth of a brand new order, risen through a putsch or a coup. The real takeover was a kind of coup in slow-motion, of which Trump is the culmination: the long and steady subordination of the law to the whims of capital and empire.
The Gangsterization of America
For many years, conservatives have claimed the country should be run like a business, by a businessman. The presidency of Donald Trump is their wish come true. Is anyone genuinely surprised that he would treat the law as a personal prop, to ignore or to use at whim, in exactly the way a power-tripping businessman would do — what Cornel West’s calls “the full-scale gangsterization of the world”?
In past administrations, the legal order was the medium of power and cruelty, but also their limitation. Trump has peeled back this façade to reveal the ugly, rotten germ of authoritarianism that was latent all along — the impulse for a strongman who gets things done, no matter what. Trumpism is what happens when the best the ruling class can vomit up is the sniveling face of a petty billionaire.
So when a reptile like Yoo expresses their half-assed misgivings about Trump, it calls to mind an important lesson about the American system. There is a through line that extends from previous presidents right to Donald Trump, which no constitution-minded critic has any right to ignore. Despite the alarming ways he might misuse or abuse his power, we shouldn’t harbor any illusions that a return to the “rule of law” will save us.
The thing about the rule of the bourgeoisie is that it is just that — the way the bourgeoisie rule. As an instrument of capital and empire, the law could be read or stretched to allow all sorts of thuggery and mischief. And as the crises of US hegemony grow and magnify, it perpetuates the urge toward more expansive power and brutality. The “rule of law” was nurturing the seeds of its own abuse.
In the coming months and years, the legal front will be an indispensable part of the struggle against Trumpism. The unlawful conduct of Trump’s presidency should be watched and fought vigorously.
But we should not content ourselves with formalistic checks against the most obscene expressions of power. We need a genuine, transformative, and radical mass politics to confront capital and empire head-on. For there is nothing innately good or bad about the “rule of law,” except how it is used. Because at the end of the day, the court answers to the king.