“He who saves his country does not violate any law,” Donald Trump posted last month, in a quip attributed to Napoleon. Trump has been acting on that maxim from day one.
But over the past week his assault on the judiciary has intensified. Having been blocked from deporting more than 200 Venezuelan alleged gangsters, federal agents went ahead with the flights anyway. When the judge, James Boasberg, asked Department of Justice lawyers to explain that seeming disregard for the ruling, Trump called him a “radical left lunatic” and demanded his impeachment.
His rhetoric is so out of the ordinary that John Roberts, US Supreme Court chief justice, felt obliged on Tuesday to point out that such threats were “not appropriate”, though he did not specify from whom.
Whether Trump takes Roberts’s admonition seriously — he was quick to observe that he was not named — will soon be apparent. Yet his judicial showdown is only one of many “not appropriate” lunges at the US system’s jugular with a ferocity that has taken even pessimists by surprise.
Among these are Trump’s declaration of war on universities — notably Columbia University and the University of Pennsylvania, with more in the pipeline; his purge of oversight officials and inspectors from the executive branch, including from the FBI and the Pentagon; and his bypassing of Congress’s fiscal monopoly by allowing his super-powered tsar, Elon Musk, to seize control of the state’s cash spigots and databases. In addition to throwing dozens of agencies into turmoil, Musk’s so-called Department of Government Efficiency (Doge) has also dismantled USAID and is targeting the Department of Education.
The courts can barely keep up. Trump officials have stonewalled multiple court restraining orders, and he still plans to punish the “scum” who investigated him — a pledge he repeated last week in a speech he gave inside the justice department.
Trump’s moves, which started on day one with his pardoning of roughly 1,500 people jailed for storming Capitol Hill four years ago, and commuting the terms of the hardest core offenders, have ticked nearly every box on the scholarly checklist of democratic backsliding. But his alacrity has also cast the system’s defenders into disarray.
“This is moving a lot faster than any of us anticipated,” says Steven Levitsky, a Harvard scholar and co-author with Daniel Ziblatt of How Democracies Die. The capture of state institutions that took strongmen like Viktor Orbán or Recep Tayyip Erdoğan many years to accomplish, “Trump is trying to pull off in months”.
Moreover, a hostile seizure of the key government organs has never been tried in a wealthy and established democracy like America, he says. “Trump’s speed and intent is remarkable. Even when they happen slowly, such all-out assaults are hard to stop.”
Trump has been fortunate to start with an obedient Congress, America’s first branch of government.
The release of the so-called “J6 hostages” set the tone. Since their aim had been to “hang Mike Pence”, Trump’s then vice-president, the message was stark. Only loyalty can buy you safety.
The Republican-controlled Senate dutifully confirmed every Trump nominee, including several whose conduct and record would have caused their rapid ejection in any other era. The US now has, among others, a health secretary who doubts the efficacy of vaccines, an FBI director who has vowed lawfare on Trump’s enemies and a director of national intelligence accused of parroting Kremlin propaganda.
Almost no Republicans objected when Trump stripped security protections from erstwhile officials, including Mike Pompeo, his former secretary of state, John Bolton, a former national security adviser, and Brian Hook, his ex-Iran envoy. The FBI says each are on an Iranian hit list.
“It’s pure fear and cowardice,” says Adam Kinzinger, a former Republican Congressman who served on the committee that investigated the January 6 assault and who Trump has threatened with arrest. “I’ve lost friends and some family over it. A former [air force] co-pilot told me he was ashamed to have been in combat with me. But it’s outweighed by the fact that I can look at myself in the mirror.”
Not once, meanwhile, has Congress called Musk to testify about the authority or actions of Doge. “Congress . . . has been disembowelled,” says Don Kettl, former dean in the School of Public Policy at the University of Maryland. “He can count on doing pretty much whatever he wants without resistance from Capitol Hill.”
Though Musk’s tool is the chainsaw, not a scalpel, and his approval rating has plummeted, he knows where the power lies. Trump may have packed the “power ministries” of law enforcement, the military and intelligence with loyalists, but his boldest power grab is being spearheaded by Doge.
“The takeover of the federal payments and personnel systems was a genius move,” says Rosa Brooks, a professor at Georgetown Law School. “Doge shows that you don’t need tanks in the street if your pension or grant has suddenly gone missing. If you can eliminate or control the entire government’s ability to hire and fire and issue payments and not issue payments, then you’ve done it. Who needs an army?”
Trump’s legal targets have also been shrewdly chosen. One of Columbia’s graduates, Mahmoud Khalil, was arrested earlier this month for allegedly aiding terrorists by organising protests where pro-Hamas literature was handed out. As a Muslim and an Arab, Khalil’s plight is unlikely to spark public outpourings. Yet as a green card holder, his defeat in court would give Trump licence to deport any permanent resident on whatever grounds he chose. US citizens would not be immune.
In recent weeks, several arriving green card holders and tourists have been incarcerated for days on petty bureaucratic grounds. “Thought has gone into who to target first,” says Don Moynihan, a public policy professor at the University of Michigan. “If you read the executive orders and memos there is a lot of creative thinking in this White House and a determined legal machinery to see this through.”
Universities are no darlings of public affection. Having been the originators of progressive America’s speech orthodoxy, they are also on weaker ground to push back against Trump’s speech-policing agenda. A move by Trump to tax the Ivy League’s bulging endowments — something he is considering — would be popular with large swaths of America.
“Higher education has made itself an attractive weak target for Trump to advance his loathsome and extra-lawful approach,” says Lawrence Summers, a former Harvard president and US Treasury secretary. “I fear Trump, in the authoritarian way, is looking for grounds to prosecute and chill institutions whose constituents oppose his methods and policies and where there is a strong capacity to communicate.”
When Trump wants an institution closed, it happens fast. This week, the Voice of America was dismantled after more than 80 years. Most of Radio Free Asia employees were suspended. National Public Radio is also in the White House’s sights.
“I’m critical of universities and have tried not to add to the hyperventilation, but it’s important to note that almost anything can get worse,” Summers adds. “I did not envision two months ago the disregard for due process and savagery that we’re seeing.”
Two questions keep recurring in Washington. How much further will Trump go? And why is there such little pushback from his opponents?
On the first, there are plenty of shoes yet to drop. Trump has mostly confined his deportations to test cases, rather than sweeping communities up en masse as his supporters had hoped he might. “It turns out it’s not that easy to deport people,” says Kettl. “It can take several [Immigration and Customs Enforcement] agents to track down one or two individuals.”
Trump recently said he had the authority to use the US military for future round ups and is poised to invoke the Insurrection Act to deploy troops on the southern border and on America’s streets. Insiders say that his purge of senior brass is still in its early stages.
Trump’s oft-recited revenge plans against his enemies are yet to bear fruit, although his attorney-general, Pam Bondi, has become increasingly belligerent in her rhetoric against legal norms. Having only recently been confirmed, the FBI director Kash Patel, and his deputy, Dan Bongino, have yet to initiate any vengeful probes, though they are widely expected to do so soon.
Nor has Trump yet moved on the US Federal Reserve, which he has often mused about bringing under White House control.
How hard Trump feels able to push will ultimately depend on how much resistance he meets. Democrats, chief executives and civic leaders are conspicuously betting that the courts will erect roadblocks.
Yet the most fateful questions would likely be heard by the same Supreme Court that issued last year’s sweeping 6-3 ruling that granted Trump substantial immunity from criminal prosecution. Before his congressional address this month, Trump told Roberts, “Thank you again. Won’t forget it.”
The Democratic Party, lacking leadership and in a fractious mood, is perhaps investing the most faith in the law. But Trump’s appetite to play hardball keeps growing. In the past 10 days, he has stripped clearances and contracts from firms that have advised anyone on his enemies list. One such law firm, Perkins Coie, says it has suffered an exodus of corporate clients. Another, Paul Weiss, was reinstated only after agreeing to give his administration $40mn in pro bono advice. Dissenting judges, meanwhile, are branded as anti-national.
“Relying on judges is a mistake,” says Brooks of Georgetown University. “Democrats . . . are overinvested in the law and underinvested in the information space.”
Much like his trade tactics, Trump doubles or quadruples retaliatory threats whenever a judge pauses one of his actions. But he has not yet unequivocally refused to comply with an order. “It’s a game of chicken,” Brooks says.
Trump’s alter ego, Musk, last month said that “the fundamental weakness of western civilisation is empathy”. The president’s closest observers, including some Republicans, agree there are few inner limits on what he might do. Trump is an irresistible force yet to meet an immovable object.
“We have too much faith in what is ultimately a partisan process — the law,” says Moynihan of the University of Michigan. “People are hoping that Roberts and one other conservative will rule against the same party — Trump’s party — that put them on the court.”
As others have remarked, however, hope is not a strategy — still less so against a figure as unbound as Trump.
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