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  • Writer's pictureDurham Pro Bono Blog

All-American Authoritarian: Trump and the Rule of Law

Updated: Feb 7, 2022

By Metas (Fin) Chongsoontornkul

In the summer of 2020, mass protests broke out all over the U.S. in the wake of the murder of George Floyd, an unarmed black man, by police who knelt on his knee until asphyxiation. Despite sporadic looting and violence, protests remained largely peaceful. Donald Trump’s response was anything but. The president encouraged forceful police crackdowns, sent in national guard troops, and even threatened to involve the military to subdue what he called, “thieves,” “thugs,” and “hoodlums.” “I am your president of law and order,” he said at a Rose Garden speech. That same day, officers forcibly cleared out a peaceful demonstration at Lafayette square with tear gas, rubber bullets and other crowd dispersal tools, allowing Trump to conduct a photo op in front of St. john’s Church, holding up a Bible.

That day perfectly encapsulates Donald Trump’s relationship to the rule of law: a flagrant disdain and dangerous flirtations with Authoritarianism and Populism.


Authoritarianism


Donald Trump has long viewed his position as not one of servitude, but of authority. He has wielded the executive branch as an instrument of his own political agenda, including flagrant usage of the language of command and installing people personally loyal to him into positions of power. He has openly praised authoritarian leaders such as Turkey’s Erdogan and Russia’s Putin and has echoed the rhetoric of past authoritarians, including retweeting a quote attributed to fascist leader Benito Mussolini.

Trump’s administration (namely William Barr) have used the theory of the Unitary Executive as a means of legitimization. The theory, despite often being attributed to the founding fathers, was developed by Reagan administration lawyers and states that there is a strict separation of powers and that the president should hold all the power of the executive branch without limit, nor should he allow any participation from congress or the judiciary. This theory has been criticised for enabling abuse of power. This is what led him to say at a Turning Point USA event, “I have an article 2 [referring to the power of the executive] where I have the right to do whatever I want as president.”

Populism

In short, populism is the political strategy of juxtaposing “the people” against some sort of enemy. It is a simplified and highly moralistic form of politics, boiling everything down into a fight between good and evil. The problem with populism is that it tends to consolidate itself into the idea that there is a single leader that embodies the ‘will of the people’ and that any institution or group within the confines of traditional liberal democracy that do not conform to that leader are ‘enemies of the people’. Understandably, populism often spirals into conspiracy theories and authoritarianism proper.

For Trump, “the people” is his mostly white and Christian conservative base, who brand themselves as the “silent majority”. Additionally, Donald Trump’s continued it is the fiery villainization of the courts, the Democratic party, immigrants, and “antifa”. This alongside fueling the flames of election conspiracy theories and Qanon culminated in the January 6th insurrection where a mob sought to reinstate Donald Trump as president.


To Conclude


The Trump presidency has not been good for rule of law in America. More and more, we see a disturbing rise and normalization of authoritarian and populist rhetoric in the United States which has threatened to tear down the system of liberal democracy itself. More work needs to be done to safeguard the rule of law and both the public and lawyers need to be wary. “It could never happen here” is no longer true.


 

[1] Brendan O’Brien and Jonathan Ernst, 'Sporadic violence flares in latest US protests over Floyd death' (Reuters, 2 June 2020) <https://www.reuters.com/article/us-minneapolis-police-protests/trump-pushes-military-response-as-u-s-girds-for-more-protests-idUSKBN23916N> accessed 12 January 2022.


[2] Idrees Ali and Phil Stewart, 'Perils for Pentagon as Trump threatens to militarize response to civil unrest' (Reuters, 2 June 2020) <https://www.reuters.com/article/us-minneapolis-police-military/perils-for-pentagon-as-trump-threatens-to-militarize-response-to-civil-unrest-idUSKBN239324> accessed 12 January 2022.


[3] Matt Flegenheimer, 'What Democracy Scholars Thought of Trump’s Bible Photo Op' (The New York Times, 2 June 2020) <https://www.nytimes.com/2020/06/02/us/politics/trump-holds-bible-photo.html> accessed 12 January 2022.


[4]Peter L Strauss, ‘The Trump Administration and the Rule of Law’, (2019) Revue Française D’Aministration Publique, No. 170, P. 433, 2019; Columbia Public Law Research Paper No. 14-650 <https://scholarship.law.columbia.edu/faculty_scholarship/2597> accessed 12 January 2022.


[5] Chris Cillizza and Brenna Williams, '15 times Donald Trump praised authoritarian rulers' (CNN, 2 July 2019) <https://edition.cnn.com/2019/07/02/politics/donald-trump-dictators-kim-jong-un-vladimir-putin/index.html> accessed 12 January 2022.


[6] BBC Staff, 'Trump retweets quote attributed to fascist leader Mussolini' (BBC News, 28 February 2016) <https://www.bbc.co.uk/news/world-us-canada-35682844> accessed 12 January 2022.


[7] William Barr, Office of the Attorney General, ‘19th Annual Barbara K. Olson Memorial Lecture at the Federalist Society's 2019 National Lawyers Convention’ (Speech at the Federalist Society’s 2019 National Lawyers Convention, Washington DC, 15 November 2019) <https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-19th-annual-barbara-k-olson-memorial-lecture> accessed 12 January 2022.


[8] Jeffrey Crouch, Mark J. Rozell and Mitchel A. Sollenberger, ‘The Law: The Unitary Executive Theory and President Donald J. Trump’ (2017) 47(3) Presidential Studies Quarterly 561.


[9]Michael Brice-Saddler, 'While bemoaning Mueller probe, Trump falsely says the Constitution gives him ‘the right to do whatever I want’' (The Washington Post, 23 July 2019) <https://www.washingtonpost.com/politics/2019/07/23/trump-falsely-tells-auditorium-full-teens-constitution-gives-him-right-do-whatever-i-want/> accessed 12 January 2022.


[10] Nicola Lacey, ‘Populism and the Rule of Law’ (2019) 15 Annual Review of Law and Social Science 76.


[11] Nicholas Fandos, 'Donald Trump Defiantly Rallies a New ‘Silent Majority’ in a Visit to Arizona' (The New York Times, 11 July 2015) <https://www.nytimes.com/2015/07/12/us/politics/donald-trump-defiantly-rallies-a-new-silent-majority-in-a-visit-to-arizona.html> accessed 12 January 2022.


[12] Southern Poverty Law Center, 'The Road to Jan 6: A Year of Extremist Mobilization' (Southern Poverty Law Center, 30 December 2021) <https://www.splcenter.org/features-stories?keyword=the+road+to+jan+6> accessed 13 January 2022.







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