Here’s why the President Trump keeps ignoring the law

Noah Feldman, Tribune News Service

President Donald Trump’s disregard for the rule of law is as clear as it could be. Consider that the three justices he appointed to the Supreme Court all joined a middle-of-the-night emergency decision blocking the unlawful deportation of more Venezuelan nationals to El Salvador — after the court had already ruled 9-0 that no one should be deported without a hearing first. But you can’t cure a disease without a diagnosis. To fight back against Trump, the country and the courts need to understand why he’s waging war on law, not just that he is. Tempting though it may be to think so, the best diagnosis isn’t that Trump is simply crazy or wants to be a dictator. His actions can be explained rationally in terms of his incentives and his past behaviour.

Put simply, Trump learned during the last eight years — featuring two failed impeachments, three fizzled criminal cases, and one toothless New York conviction — that he pays essentially zero personal cost when he violates the law. Like any child who faces no consequences for his actions, he concluded that the rules don’t apply to him. He will keep on breaking the law until he pays a price for it. And although acting unlawfully interferes with putting his preferred policies into place, Trump has repeatedly shown he cares much less about what happens than the messages his conduct sends. Unlawful actions frighten and enrage his opponents, who then contribute to extensive news coverage that tells his supporters he’s taking on the elites they don’t like. When a president doesn’t want to follow the law himself, there are supposed to be internal institutional checks to make him do so. One is the Office of Legal Counsel of the Department of Justice. OLC, as it’s called, has for decades functioned as a kind of independent-minded law firm within the executive branch. Before a president does anything that potentially pushes the legal envelope, he is supposed to get a formal memorandum from OLC that analyses the legal issues and concludes that the action can or cannot be undertaken, and how.

In a normal administration, OLC memos are often treated almost as having the force of law themselves. The system is admittedly imperfect: under the presidency of George W. Bush, a lawyer in the office, John Yoo, authored the so-called torture memos that mistakenly (not to mention immorally) concluded that various methods of “enhanced interrogation” were not prohibited by federal statutes that banned the use of torture. But the OLC system could also be self-correcting. When he took over OLC, Jack Goldsmith (now a colleague of mine at Harvard Law School) immediately noticed the legal errors in the memos and retracted them. That was an act of personal courage, ending Goldsmith’s rapid and well-deserved rise in conservative legal circles. At the same time, it was an act of institutional recovery. The repudiation of the earlier memos cemented OLC’s reputation as genuinely independent and as a brake on unlawful executive action.

Trump has sidelined OLC to the point of ignoring it, as Goldsmith himself has pointed out. Executive orders come out of the White House that are plainly unlawful without even the formality of consulting OLC. Once lost, the OLC check will be extremely difficult to resuscitate in a future administration. Building a credible OLC team that is not simply subordinate to a given president’s legal theory takes time. And getting top-flight lawyers to staff the team requires them to believe that what they will say matters. Then there’s the attorney general, the nation’s top law enforcement official. That person can also function as a check on the president by insisting that the chief executive’s actions are lawful. Pam Bondi seems to have no interest in playing that role, preferring to post support for the president’s policies on social media, even when they are plainly illegal.

In comparison, William Barr, who served as attorney general in the first Trump administration, looks practically like a paragon of legal restraint — even though he did an enormous amount to facilitate Trump’s interests, including undermining Robert Mueller’s investigation. Barr was a master at deploying subtle reading of legal rules to maximise presidential power. But at least he bothered to pay lip service to the rule of law. Bondi doesn’t even do that. The upshot is that Trump is acting rationally, having removed institutional bars to his conduct. He not only loses nothing from lawless action, he gains by it — even when the courts stop him. The solution is therefore to find ways to make Trump pay a meaningful price for violating the law. That’s unlikely to come from the Supreme Court, which has taken criminal sanctions off the table, or from Congress, where impeachment doesn’t seem like a realistic possibility.

It’s going to have to come from the people directly, expressing themselves through elections, protests, and poll numbers. In our democracy, the people gave us Trump. Now the same people have to protect themselves from his assault on the law. If we don’t, our democracy won’t survive.