America’s legal order has met its match in President-elect Donald Trump, who has consistently escaped accountability for his crimes and now enjoys near-total impunity. If the rule of law is to survive, it must have a say about what is and is not just, rather than merely recognizing as valid whatever is legislated.
CAMBRIDGE – Kamala Harris was not alone in suffering a decisive loss in the 2024 US presidential election. It was also a defeat in the “battle for the soul” of the rule of law – an institution that has defined American democracy for almost 250 years. Poignantly illustrating that fact was Special Counsel Jack Smith’s filing to drop the Department of Justice’s prosecutions of President-elect Donald Trump.
Trump’s win gets him off the hook for his attempt to overturn the 2020 election. He will also most likely evade legal accountability in the other state-level cases against him in Florida, Georgia, and New York.
Worse still, Trump’s assault on the rule of law is only just getting started. He is a walking conflict of interest who has not divested any of his financial holdings. He has called for the “termination” of the Constitution, joked about his dictatorial aspirations, lauded authoritarian leaders like Russian President Vladimir Putin, and threatened to target journalists and “lock up” his political opponents.
Having staged the “greatest political comeback,” and with his allies firmly in control of both houses of Congress and the Supreme Court, Trump is likely to be even more bellicose in his second term. With the Heritage Foundation’s ultra-conservative Project 2025 blueprint as inspiration, he is selecting loyalists who share his contempt for the rule of law to lead top law-enforcement agencies like the FBI, and has promised mass deportations and discriminatory “travels bans.”
Since the Watergate scandal, most US presidents have voluntarily shown some restraint in exercising their powers, particularly vis-à-vis the Justice Department, which is supposed to operate at a remove from Washington politics. But Trump has no respect for such norms or traditions, and “testing limits” is his signature move.
Legal scholars and political scientists have been gaming out America’s system of checks and balances in anticipation of a second Trump presidency, and the outlook is not good. As Barton Gellman of the Brennan Center for Justice explains, “The games demonstrated repeatedly that an authoritarian in control of the executive branch, with little concern for legal limits, holds a structural advantage over any lawful effort to restrain him.”
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The risk has only grown following the US Supreme Court’s landmark decision in Trump v. United States, in which the conservative majority granted the president “presumptive immunity from prosecution in all his official acts.” Meanwhile, the power of presidential pardons is more sweeping than ever, and tools like the Insurrection Act, which allows the president to deploy the military domestically for various vaguely defined purposes, will be at his disposal.
Trump has already made a mockery of all legal attempts to contain him. His conviction in the “hush money” trial in New York was a fillip to his popularity – and to his campaign coffers. Republicans stuck with their anointed leader, and some even showed up at his trial to offer their support. While Harris and the Democrats emphasized the threat Trump poses to the rule of law, many voters sympathized with Trump, who accused the Biden administration of waging “lawfare” against him.
The law’s failure to hold Trump accountable revives an old debate, which has played out both in the abstract and in specific contexts, ranging from Nazi law and chattel slavery to the South African apartheid regime, about when “evil” or “wicked” laws cease to be valid. The dominant school of thought in legal theory – positivism, pioneered by thinkers like Jeremy Bentham, Hans Kelsen, and HLA Hart– holds that “law is law” as a matter of social fact. According to this “separation thesis,” law’s validity has nothing to do with morality and requires only that officials buy in to it (adopt the “internal point of view”), and that it is generally obeyed. In doing so, they risk legitimizing regimes where might is right.
The work of Gustav Radbruch, a relatively esoteric German philosopher, may be more relevant to this moment. The Radbruch Formula states that “[t]he conflict between justice and legal certainty may well be resolved in this way: The positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree [my emphasis] that the statute, as ‘flawed law,’ must yield to justice.”
Radbruch, who originally had positivist leanings, developed this formula as a reaction to seeing the Nazis come to power in Germany by legal means. As he put it, “Positivism, with its principle that ‘a law is a law,’ has in fact rendered the German legal profession defenseless against statutes that are arbitrary and criminal.” The historical resonance here is hard to ignore. America’s rule-of-law regime has met its match in Trump; indeed, his own popularity seems to owe something to the public’s mistrust of it.
If the rule of law is to have a fighting chance, its defenders must acknowledge that the law risks becoming a hollow shell, and its sterility a breeding ground for pugnacious populism. The rule of law must restore peoples’ faith by becoming a symbol of justice and grounding its appeal in morality and shared meaning. As even the preamble to the US Constitution implies, the quest to become a “more perfect Union” is inextricably tied up with the effort to “establish Justice.” But to succeed, the rule of law will need to discover a soul.
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thinks the next president will be forced to choose between big business and the forgotten man.
CAMBRIDGE – Kamala Harris was not alone in suffering a decisive loss in the 2024 US presidential election. It was also a defeat in the “battle for the soul” of the rule of law – an institution that has defined American democracy for almost 250 years. Poignantly illustrating that fact was Special Counsel Jack Smith’s filing to drop the Department of Justice’s prosecutions of President-elect Donald Trump.
Trump’s win gets him off the hook for his attempt to overturn the 2020 election. He will also most likely evade legal accountability in the other state-level cases against him in Florida, Georgia, and New York.
Worse still, Trump’s assault on the rule of law is only just getting started. He is a walking conflict of interest who has not divested any of his financial holdings. He has called for the “termination” of the Constitution, joked about his dictatorial aspirations, lauded authoritarian leaders like Russian President Vladimir Putin, and threatened to target journalists and “lock up” his political opponents.
Having staged the “greatest political comeback,” and with his allies firmly in control of both houses of Congress and the Supreme Court, Trump is likely to be even more bellicose in his second term. With the Heritage Foundation’s ultra-conservative Project 2025 blueprint as inspiration, he is selecting loyalists who share his contempt for the rule of law to lead top law-enforcement agencies like the FBI, and has promised mass deportations and discriminatory “travels bans.”
Since the Watergate scandal, most US presidents have voluntarily shown some restraint in exercising their powers, particularly vis-à-vis the Justice Department, which is supposed to operate at a remove from Washington politics. But Trump has no respect for such norms or traditions, and “testing limits” is his signature move.
Legal scholars and political scientists have been gaming out America’s system of checks and balances in anticipation of a second Trump presidency, and the outlook is not good. As Barton Gellman of the Brennan Center for Justice explains, “The games demonstrated repeatedly that an authoritarian in control of the executive branch, with little concern for legal limits, holds a structural advantage over any lawful effort to restrain him.”
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At a time when democracy is under threat, there is an urgent need for incisive, informed analysis of the issues and questions driving the news – just what PS has always provided. Subscribe now and save $50 on a new subscription.
Subscribe Now
The risk has only grown following the US Supreme Court’s landmark decision in Trump v. United States, in which the conservative majority granted the president “presumptive immunity from prosecution in all his official acts.” Meanwhile, the power of presidential pardons is more sweeping than ever, and tools like the Insurrection Act, which allows the president to deploy the military domestically for various vaguely defined purposes, will be at his disposal.
Trump has already made a mockery of all legal attempts to contain him. His conviction in the “hush money” trial in New York was a fillip to his popularity – and to his campaign coffers. Republicans stuck with their anointed leader, and some even showed up at his trial to offer their support. While Harris and the Democrats emphasized the threat Trump poses to the rule of law, many voters sympathized with Trump, who accused the Biden administration of waging “lawfare” against him.
The law’s failure to hold Trump accountable revives an old debate, which has played out both in the abstract and in specific contexts, ranging from Nazi law and chattel slavery to the South African apartheid regime, about when “evil” or “wicked” laws cease to be valid. The dominant school of thought in legal theory – positivism, pioneered by thinkers like Jeremy Bentham, Hans Kelsen, and HLA Hart – holds that “law is law” as a matter of social fact. According to this “separation thesis,” law’s validity has nothing to do with morality and requires only that officials buy in to it (adopt the “internal point of view”), and that it is generally obeyed. In doing so, they risk legitimizing regimes where might is right.
The work of Gustav Radbruch, a relatively esoteric German philosopher, may be more relevant to this moment. The Radbruch Formula states that “[t]he conflict between justice and legal certainty may well be resolved in this way: The positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree [my emphasis] that the statute, as ‘flawed law,’ must yield to justice.”
Radbruch, who originally had positivist leanings, developed this formula as a reaction to seeing the Nazis come to power in Germany by legal means. As he put it, “Positivism, with its principle that ‘a law is a law,’ has in fact rendered the German legal profession defenseless against statutes that are arbitrary and criminal.” The historical resonance here is hard to ignore. America’s rule-of-law regime has met its match in Trump; indeed, his own popularity seems to owe something to the public’s mistrust of it.
If the rule of law is to have a fighting chance, its defenders must acknowledge that the law risks becoming a hollow shell, and its sterility a breeding ground for pugnacious populism. The rule of law must restore peoples’ faith by becoming a symbol of justice and grounding its appeal in morality and shared meaning. As even the preamble to the US Constitution implies, the quest to become a “more perfect Union” is inextricably tied up with the effort to “establish Justice.” But to succeed, the rule of law will need to discover a soul.