Former US president Donald Trump.
Credit: Reuters Photo
By Noah Feldman
A new season of Trump-presidency panic is upon us. And for good reason: Donald Trump could be re-elected in 2024 despite an unprecedented year in which the former president was criminally indicted in three separate jurisdictions, lost a civil defamation suit, and is losing a civil fraud suit against the Trump organisation.
Critics worry that if he regains the Oval Office all bets are off; the man who twice survived impeachment in his first term would be unrestrained in his future efforts to break our democracy. Yet this picture of Trump as a Leviathan overwhelming all constitutional restraints is a misleading fantasy, one improbably shared by his detractors and some of his most dedicated supporters.
We don’t have to speculate wildly about what Trump would do in a second term. Trump’s first term pretty much tells us. Those four years also show the strengths and vulnerabilities of our constitutional structure. Taken together, these lessons give us a battle plan to keep the Constitution alive in a second Trump presidency.
Start with some things Trump wishes he could have done in his first term, but could not: banning foreign Muslims from entering the US; punishing sanctuary cities; building a border wall without congressional authorisation; and changing the census questionnaire to intimidate Hispanics.
In all these cases, Trump’s efforts — often taking the form of executive orders — met robust legal resistance. After the Supreme Court, in a disastrous decision by Chief Justice John Roberts, tried to reach some sort of compromise on the Muslim travel ban, the majority turned squarely against Trump, dealing him defeat after defeat.
The takeaway is that the judiciary represents the strongest bulwark against Trump’s efforts to break constitutional rules. If a future president Trump again acts in violation of clear legal precedent, the courts can be expected to hold the line.
Yes, Trump appointed many lower court judges and three Supreme Court justices. But as we saw when Trump went to the courts for help overturning the 2020 election, those judges, many handpicked by the conservative Federalist Society, chose the rule of law over loyalty to Trump. In a second term, Trump could try to nominate incompetent hacks to be his legal bag carriers. If that happens, it would be the job of the legal community, conservatives and liberals alike, to block such judges from being confirmed.
Where Trump had more success was in undermining constitutional norms that aren’t written down. These traditions have long kept the ship of state steady — like the hard-won tradition of keeping the work of the Federal Bureau of Investigation and the Department of Justice independent from partisan politics. Trump made great strides in convincing lots of the public that federal law enforcement is and should be partisan.
Attorney General Merrick Garland has tried hard to reverse the damage to democracy. But that task has been made difficult almost to the point of impossibility by the moral necessity of charging Trump criminally for his actions on January 6, 2021.
To be sure, Garland has used a special prosecutor to keep the key decisions away from himself — the same practice he’s followed assiduously when it comes to the prosecution of President Joe Biden’s son Hunter. Yet the unavoidable reality is that the Justice Department, which ultimately answers to the president, is bringing a criminal case against the most likely Republican nominee for president. Under the circumstances, it’s hard to see too many Republicans embracing the narrative of political independence.
It seems certain that Trump, if elected again, would try to go further in turning the FBI and the Justice Department into personal fiefdoms. The courts couldn’t do much to stop this. Our Constitution puts the prosecution function under the executive branch.
Fighting the politicisation of the Justice Department should therefore become one of the central objectives of those who would stop Trump from corroding democracy. That means spotlighting the issue, creating standing House and Senate investigations to oversee investigation and prosecution decisions, and delegitimating Trump’s efforts whenever possible.
As important, perhaps more so, is maintaining the military’s commitment to following all lawful orders, and no unlawful ones. When push comes to shove, as it did on January 6, Trump will want the military to back him. As it happens, the then-Chairman of the Joint Chiefs, Mark Milley, resisted the pressure. But we need more assurance that any future chairman would do the same, and with more public transparency.
The solution is to teach and re-teach the military at all levels that principle of civilian control is about obeying the Constitution, not the president. An order issued without legal authority is no order at all. And the ultimate judge of the constitutionality of orders is the Supreme Court. From the most senior levels to the most junior, the military needs to plan for how to react if Trump — or any future president — orders force used in domestic, civilian contexts.
The first Trump presidency was a stress test for democracy. Democracy survived the test, but its weaknesses were highlighted. We should use that information to prepare — not to panic.