As a kid, I used to wonder if civilization is really just the process by which older, weaker people prevent younger, stronger ones from taking over. By the time the younger ones figure it all out, they’re old enough to need the protection of civilization’s rules themselves.
This is not too far from the way President Donald Trump sees the legal system: Laws are the enemy of the effective CEO and benevolent dictator alike. They are the limits through which the lazy and inferior hold back the great. In this sense, laws are a corruption of the natural order where the strong survive by leveraging their evolutionary advantages over the weak.
For Trump, the law is corruption.
It’s not the same sort of corruption as taking bribes. It’s a more essential violation of a leader’s strength and unfettered ability to do whatever he wants in the moment, such as extorting Ukraine to investigate the Bidens in return for military aid or ordering special counsel Robert Mueller to be fired (and to cover up the reason why) for merely investigating him. Or repeatedly flouting immigration law to scare Central Americans from immigrating to the U.S. or locking their kids in detention camps. None of that could get done if Trump had been bogged down evaluating the legality of his actions.
In fact, any law that inhibits Trump’s freedom to act may as well not exist. “You people, with this phony Emoluments Clause,” Trump told reporters last month at a White House press conference in response to their questions about him personally profiting off his presidency, which is forbidden in the Constitution.
In this philosophy, any application of the law against the leader is most likely itself a form of misconduct, a “witch hunt” waged by political opponents who have no other way to obstruct his rule. It’s the word Israeli Prime Minister Netanhayu uses to characterize the bribery charges against him as an elaborate scheme by the left. It’s the word Big Pharma price gouger Martin Shkreli used when he was found guilty for unrelated securities fraud. The new defense is not to defend oneself at all, but to accuse the accusers of corruption: I know you are, but what am I?
Trump’s ongoing rebuttal against accusations that he is breaking the law almost always depends on the logic that these laws don’t apply to him anyway. As his friend and retired Harvard law professor Alan Dershowitz explained, Trump was accused of mere “process crimes” during the Russia investigation, rather than any fundamental wrongdoing. Lawyer games. As far as the president is concerned all such investigation is an illegitimate impediment to his rule. Or, as one of Trump’s lawyers argued recently in federal court, if the president were to shoot someone on Fifth Avenue, “nothing could be done.”
This is why Trump demonstrates such contempt for the investigators, attorneys, and judges who actually attempt to apply the law. He called the FBI “disgraceful” and said they “should be ashamed” for challenging his false contention that Russia was not involved in 2016 election interference. He makes personal attacks against judges who rule against him, famously claiming that the Indiana-born judge Gonzalo Curiel could not rule impartially because of his Mexican heritage.
Trump’s harrowing experience as president has only confirmed his worst suspicions about the legal process. For Trump, the law has become a “cudgel” that Democrats and deep state use to undermine him. Think of it from his perspective: They use laws to challenge the legitimacy of an election he won fair and square (maybe with a little help from others allied in the fight against corrupt bureaucracy, like the Russians). They selectively enforced technicalities in election finance regulations to challenge and publicize his generous payoff to a porn star, as well as his campaign’s very ordinary opposition research overseas. They want access to a decade of tax returns, just so they can go on a fishing expedition.
To be fair, this isn’t just paranoid fantasy. Trump is contending with a form of political combat so established that it has a name: lawfare, the use of the legal system as an alternative weapon of war. It can refer to the way a weaker nation finds evidence of war crimes to delegitimizes the authority of its larger enemies on the world stage. But it can also refer to the way the laws of a nation can be turned against its own officials to check their power or undermine their policies. To Trump, lawfare is what members of “the swamp” use to further entrench their networks of international corruption and to attack anyone who seeks to disturb them.
Trump, too, wages a kind of lawfare against those who seek to challenge his hold on power. But in Trump’s hands, lawfare is less a legal strategy than form of propaganda. “Lock her up” was less a serious call to prosecute Hillary Clinton than a cynical effort to rouse the anger of the base. Trump demanded that the Justice Department “investigate the investigators” of the Mueller probe and find the “crimes” committed by the “other side.” This campaign consisted mostly of a “selective release” of classified documents, designed to create an alternative narrative about Russian election interference. Even the request that Ukraine investigate Biden had less to do with prosecuting the law than the demand for a public announcement one was coming. It’s as if Trump knows anything to do with the full and proper administration of the law will ultimately work against him.
Perhaps that’s why Trump’s long-term defensive strategy against lawfare has been to undermine the authority of the legal system: fill the courts with conservative judges who recognize lawfare as corruption, and surround himself with attorneys who hate the rule of law themselves. Attorney General Bill Barr is almost there. He spent his career arguing for unchecked executive power as the ultimate expression of the law. He supports an extreme version of the Justice Department’s long-standing view that in order for the executive to do his job he must be free of legal restriction and immune from prosecution. To Barr, this means the president is allowed to commit murder. Likewise, Rudy Giuliani’s position has always been to support the despot at the top — from Berlusconi and Erdogan to Netanyahu and Trump — by liberating them from the rules that corrupt the integrity of their authority. “Of course” we held up U.S. aid to Ukraine to force an investigation of Biden, Rudy admitted, as if engaged in an act of righteous civil disobedience.
From Trump and his team’s point of view, the current system stymies the ability of the executive to, well, execute. He was elected to do things — no matter what the law says — like build walls, get out of wars, break treaties, let other nations fend for themselves, and restore the principles of “might makes right.”
This is why, as this month’s impeachment hearings come to a close, we find Trump’s defenders portraying him as a leader who had no real alternative but to send his own lawyer to root out “corruption” in Ukraine and force the State Department to follow suit. Trump is now admitting to and defending himself for making a quid pro quo demand on Ukraine to investigate Biden, which was possibly illegal and technically impeachable.
Biden represents to Trump the very institutions of the deep state that are attempting to end his presidency and restore the former order. Trump thinks this is why they are now resorting to lawfare in the form of impeachment hearings. This may be a conspiratorial rabbit hole, but it’s where Trump and his allies are living. As Rep. Devin Nunes explains it, Democrats conducted hearings in a secret basement like “some kind of strange cult,” and “to advance their operation to topple a duly elected president… Americans can rightly expect his phone call was used… as an excuse for Democrats to fulfill their Watergate fantasies.”
Most chillingly, this past week’s hearings offered us a chance to witness defenders of the law get treated as enemies of the people. When career State Department veterans like Ambassador Marie Yovanovitch or Fiona Hill object to Trump undermining established U.S. foreign policy, they are castigated as the entrenched deep state protecting its own corruption in the form of laws.
In Trump’s version of America, shared by Nunes and other Republicans, laws may still apply to the citizens, but not to the leader. He’s too busy making American great again.