For some, presumptive Republican nominee for president Donald J. Trump’s biggest appeal is his blustery persona and his take-no-prisoners attitude in his quest to “Make America Great Again.” For example, he started his campaign with a bold promise to build a wall on the United States border to keep out Mexican immigrants. More than that, Trump said, he would make Mexico pay for that wall. Mexican President Vincente Fox said Mexico would not and Trump just upped the ante. When Wolf Blitzer asked Trump how he would get the Mexican government to pay for a wall, Trump responded simply, “I will and the wall just got 10 feet taller, believe me.”
And, in the wake of the mass shooting at Pulse, the gay nightclub in Orlando, Trump renewed his call to profile on the basis of race/ethnic origin and religion, in order prevent future terrorist attacks. (The Pulse nightclub shooter was American-born and raised; his parents were refugees from Afghanistan, but his father became a naturalized American citizen.) Though claiming he hates the “concept” of profiling, he says other countries profile, and “it’s not the worst thing to do.” Earlier in his campaign, after the San Bernardino shooting in December 2015, he talked about increasing surveillance of Muslims and mosques and has suggested registering Muslims or mandating that they carry cards that identify them as Muslims.
Trump also doesn’t suffer fools gladly—or more precisely, he doesn’t suffer his version of “fools” gladly. When the Honorable Gonzalo P. Curiel, the federal circuit judge presiding over two class action suits against Trump University, ordered documents in the suit be unsealed—documents that are likely to shed negative light on Trump University, Trump spoke loudly and often about Judge Curiel as a “hater” and biased against Trump because, in Trump’s view, Judge Curiel is Mexican and, presumably, would not like Trump’s wall. (Judge Curiel is an American, born in Indiana.) Trump went even further, seemingly threatening the judge: “They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace. . . . O.K.? But we will come back in November. Wouldn’t that be wild if I am president and come back and do a civil case?”
As well, just over a week ago, Trump revoked The Washington Post’s press credentials to cover his campaign because he did not like how it wrote about some of his comments after the mass shooting at Pulse, calling the publication “phony and dishonest.” Trump seems particularly thorny about The Washington Post’s owner, Jeff Bezos, who founded Amazon. Like Judge Curiel, Bezos has been on the receiving end of what seems very much like a Trump threat. According to The New York Times, Trump said in February about Bezos, “He owns Amazon. . . . He wants political influence so Amazon will benefit from it. That’s not right. And believe me, if I become president, oh do they have problems. They’re going to have such problems.”
These examples and more have a common theme: Trump’s disdain for the rule of law, if not outright ignorance of it. Over and over again, during the course of his campaign, he has made statements, floated ideas, and issued threats—and I’m not even mentioning how he has encouraged violence at his rallies—that flout the First Amendment and legal concepts like separation of powers, due process, equal protection, religious freedom, and federalism, and show lack of respect for the judiciary. Even conservative and libertarian constitutional law scholars worry about a Trump presidency. President Obama has been criticized for his use of executive orders, seemingly a way to get around Congressional action (or inaction); however, a President Trump would seem to be even more dangerous on this score: he has already said he’d use executive orders extensively. In a January 2016 interview on “Meet the Press,” Trump said, “But I’m going to use [executive orders] much better [than President Obama] and they’re going to serve a much better purpose than he’s done,” he said.
And if Trump’s comments aren’t flouting the law, they evidence an ignorance that there is a rule of law. How else can one explain how a serious candidate for president would openly endorse torture or say that his plan to fight Islamic State is to “take out” their families? There are rules. We may not like all of them, but there are rules, something that Trump finally seemed to acknowledge, at least in regard to torture of suspected terrorists and the killing of civilians, saying earlier this year that he does “understand that the United States is bound by laws and treaties” and that he would not order “our military or other officials to violate those laws[.]”
More disturbing than all of that, perhaps, is how his comments show his complete obliviousness about how government works—namely, there are three branches of government, each with a distinct role (rulemaking, rule interpretation, and rule enforcement). There is a federal system and a state system; there are statutory rules (made by Congress) and common law rules (developed by courts). Legislators create bills that the president then signs and, if necessary, the judiciary interprets (by issuing an opinion). The executive (the president) is then bound by that interpretation, whether he or she likes it or not. For a rudimentary but useful lesson in the legislative process, see this classic.
A president need not be a lawyer, but any candidate for the job should have more than a passing familiarity with this system and the president’s role in it. Thus, a president cannot “loosen” libel laws, which are state common laws limited by the First Amendment, and a Supreme Court justice can’t investigate Hillary Clinton and her emails. See here for The New York Times article attributing these and other statements to Trump.
While there may be Republicans who don’t personally support Trump, most have begun to publicly fall in line behind their presumptive nominee, and many seem to believe that once president, Trump will fit the presidential bill. Kentucky Senator and House Majority leader Mitch McConnell recently told a radio host that, if elected, Trump would have White House counsel, “others who point out there’s certain things you can do and you can’t do.” That may be, but there’s little evidence that Trump would amendable to counsel. To this point he hasn’t shown it; if anything, he’s shown his willingness to continue on his own path, the establishment be damned.
The problem here is this: we as lawyers should be very worried that a presumptive nominee for president—the sole person at the head of the executive (or rule enforcing) branch of government—shows disdain for or ignorance of the rule of law. And when we fall in line behind that nominee, we are endorsing this disdain and ignorance. As lawyers most especially, we cannot do that. We should not do that. The rule of law is too important, too crucial to this country. As my colleague David Papke notes, “[A] belief in law should be recognized as an important tenet of American ideology.”
If we remain publicly silent about Trump’s outrageous beliefs, no matter how appealing to whatever segment of voters, and silent about his flouting the rule of law, we implicitly condone those beliefs and that attitude. We are complicit in destroying an American ideology, one that we have touted across the world as a better way. Do not be silent.