Jonathan P. Baird

Possibly the most worrisome aspect of the Trump presidency has been disrespect for the rule of law. Since I know there are many who will disagree with this view, let me be specific.

In the first travel ban case, the government lawyer representing the President argued that Trump’s executive order was “unreviewable”. In a government founded on separation of powers, the argument is remarkable. Trump is arguing the power of a president is absolute and cannot be challenged.

In response, the Ninth Circuit Court of Appeals ruled that the President’s argument was “contrary to the fundamental structure of our constitutional democracy”.

When Judge James L. Robart, a George W. Bush appointee to the Federal Court in Washington state, initially enjoined the travel ban, Trump called him a “so-called judge” whose decision was “ridiculous”. Trump tweeted “if something happens, blame him”.

No judge is beyond criticism but name-calling and ad hominem attack by the President on a federal court judge is debased. It is an assault on the judge’s legitimacy and on separation of powers. Trump’s tweets are a sad substitute for a reasoned argument.

When Judge William Orrick blocked the plan to strip federal funding from sanctuary cities, Trump blamed the Ninth Circuit Court of Appeals, not realizing Judge Orrick was a Federal District Court judge. Trump then suggested that the Ninth Circuit needs to be broken up because he does not like its rulings.

The reaction is juvenile. Courts deal with a myriad of issues and it is guaranteed that there will be rulings to make everyone unhappy. I see Trump’s attack on the Ninth Circuit as an attack on an independent judiciary. He wants courts who will only rule his way.

During the campaign, Trump criticized Judge Gonzalo Curiel for his rulings in the Trump University fraud case. Trump complained Curiel was “Mexican” and “was giving unfair rulings”. Judge Curiel is a U.S. citizen born in Indiana. Trump said that he favored building a wall on the U.S.-Mexico border and Curiel could not be fair in the Trump University case because of his Mexican heritage.

Criticizing a judge for being “Mexican” is transparently racist. Even worse, it reflects a poor understanding of the need for a modern judiciary to be diverse so that it is representative of the public served. There is a legacy of racism the law must overcome and Trump appears to be unaware of that.

In the second travel ban case, Trump’s lawyer argued that the Court should ignore all the things he said during the campaign and only consider if the travel ban mentioned Islam. At issue was whether the travel ban violated the Establishment Clause of the First Amendment.

Trump had previously said on the Christian Broadcasting Network that his travel ban was designed to favor Christian refugees over Muslim refugees. He also famously called for a ban on all Muslims entering the United States. Ignoring these statements is like whitewashing reality and courts cannot simply ignore context.

Trump has expressed dissatisfaction with the First Amendment. Recently, in an interview with ABC’s Jonathan Karl, Reince Priebus, White House Chief of Staff, said that the administration was considering an effort to amend the First Amendment. Trump has long wanted to increase the liability of journalists.

Calling reporters “enemies of the American people” and calling news outlets “evil” does not reflect an understanding of the First Amendment which expressly guarantees freedom of the press. I think physical assaults on reporters like the attack on the Guardian’s Ben Jacobs occur, in part, because of Trump’s demonizing journalists. Constant berating can unhinge human behavior and lower the bar.

In an interview on Fox News to discuss his first 100 days as president, Trump denounced the constitutional system of checks and balances as “archaic”, saying “it’s a really bad thing for the country”.

Certainly, as I noted, judges are not beyond criticism but the way criticisms are offered and the substance of the criticism matter. Trump appears to want to be an all-powerful autocrat like Putin or Erdogan. Leaders like that do not have to contend with checks and balances.

I found it telling when Trump gave President Duterte of the Philippines a shout-out for the war on drugs Duterte has conducted. Trump said,

“I just wanted to congratulate you because I am hearing of the unbelievable job on the drug problem.”

During Duterte’s presidency, according to Human Rights Watch, more than 7000 Filipinos have been disappeared by government death squads. They have carried out vigilante killings with no due process for the victims. It is appalling for an American president to green light extra judicial murders in any country.

The fact that our judiciary has not rolled over and has performed its constitutional duties admirably is maybe the most encouraging aspect of the response to Trump’s authoritarian tendencies. At the same time, lawyers and law students stepped up, volunteering and setting up legal clinics at airports to assist airline passengers. At least part of the Bar has been galvanized.

Where countries have headed down an authoritarian road, one reason has been the failure of lawyers and the judiciary to oppose the creeping authoritarianism. Lawyers and judges may both be subject to opportunism and careerism. The perception of personal advancement and desire for business profit can lead to cowardly choices. Rocking the boat, in the face of advancing authoritarianism, has a history of being both professionally and personally dangerous.

I do want to make clear that I do not see Trump”s disrespect for the law as a total outlier among American presidents. Over the last 50 years, since at least Vietnam, Executive Branch overreach has been a continuing theme that implicates both political parties. From Watergate to torture, rendition and black sites to drone assassinations and kill lists, there is a degree of continuity. Trump has upped the ante though.

Historical experience shows the necessity for the rule of law and an independent judiciary, regardless of the political party in power. It remains to be seen how far down the authoritarian road Trump will go.