The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Donald Trump's campaign is built on instilling fear, and in his convention address he turned to a classic fear we haven't seen much in politics recently: fear of crime. Crime hasn't been a big topic for politicians in recent years because violent crime has been at historic lows. But that hasn't stopped Trump, whose speech tried to create the impression that crime is out of control and that only Trump can restore law and order.
Trump's Nixonian turn to law and order raises an important question: What would a Trump Justice Department look like?
It would be pretty damn frightening, I think. Trump has two long-standing passions when it comes to law and law enforcement. His first passion is the suppression of protest and dissent. And his second passion is bringing lots of legal actions against his critics and threatening many more to get his way.
In Trump's world, crushing protest and dissent is the sign of a great leader. Consider Trump's 1990 interview with Playboy, in which he was asked about the weakening Soviet Union and the Chinese government's then-recent massacre of pro-democracy protesters at Tiananmen Square:
Q: What were your other impressions of the Soviet Union?
TRUMP: I was very unimpressed. . . . Russia is out of control and the leadership knows it. That's my problem with Gorbachev. Not a firm enough hand.
Q You mean firm hand as in China?
TRUMP: When the students poured into Tiananmen Square, the Chinese government almost blew it. Then they were vicious, they were horrible, but they put it down with strength. That shows you the power of strength. Our country is right now perceived as weak … as being spit on by the rest of the world-
Q Why is Gorbachev not firm enough?
TRUMP: I predict he will be overthrown, because he has shown extraordinary weakness. Suddenly, for the first time ever, there are coal-miner strikes and brush fires everywhere. . . . [H]is giving an inch is going to end up costing him and all his friends what they most cherish—their jobs.
Stop and read that again. Trump was really impressed by the "vicious" and "horrible" way that the Chinese government massacred pro-democracy protesters. Trump was disturbed when the Chinese first allowed the protest and "almost blew it." And Gorbachev's problem was that he didn't have "a firm enough hand."
1990 was a long time ago. But with Trump, that early date only shows his consistency over time. A few months ago, Trump expressed admiration for Vladimir Putin as "a strong leader" and "a powerful leader." He has offered praise for Saddam Hussein. And just this week, when he was asked how he would respond to civil liberties violations by repressive regimes in other countries such as Turkey, Trump explained that he wouldn't deal with that because the United States had its own mess to clean up. If you read the interview, Trump wasn't saying that we had to to stop our own civil liberties violations before criticizing those of other governments. Rather, he was saying that the United States couldn't criticize other countries because it needed to be "much more aggressive" at stopping the "riots" in the streets in places such as Ferguson and Baltimore. It would be "a wonderful thing," Trump explained, if the response to the "riots" was more aggressive.
More aggressive how, you ask? Recall Trump's reaction to protests at his speeches back in February. Trump lamented that, unlike in "the old days" that he "loved," they couldn't beat up protesters so badly that the protesters were "carried out in a stretcher." Trump added that he would personally like to "punch [the protester] in the face." Trump's convention speech suggests that a Trump presidency might bring us back to the old days he loved. It's time to stop being so "politically correct," Trump explained, so "the crime and violence that today afflicts our nation will soon come to an end. Beginning on Jan. 20th, 2017, safety will be restored."
In Trump's world, "political correctness" is what keeps presidents from ordering the brutality needed to show "strength" and restore "safety."
Trump's second legal passion is hiring lawyers to go after his critics. Trump uses lawyers and lawsuits to silence his critics and get his way. Here are some highlights (lowlights?) of Trump lawsuits over the years, courtesy of the Wall Street Journal:
• When Trump thought planes were flying too close to one of his luxury South Florida resorts, he sued Palm Beach County for $100 million in an effort to change the flight path.
• He sued a Miss USA contestant for disparaging the beauty pageant on social media and elsewhere.
• Mr. Trump recently sued a labor union for what he said was an "attempt to damage the reputation" of the Trump Hotel Las Vegas by asserting that Mr. Trump himself refused to stay there during a campaign event last year.
• In 1984, he sued the Chicago Tribune for $500 million after its architectural critic wrote that one of Mr. Trump's planned hotels wouldn't be taller than the Sears Tower.
Trump also frequently threatens lawsuits as a way to silence his critics. If you want to focus on one example, this Politico piece on Trump's efforts to intimidate a securities analyst who accurately predicted the failure of a Trump casino is a great read. And this week, a lot of people have seen the frivolous cease-and-desist letter that a Trump lawyer sent just this week to a Trump critic. Think about that. Right in the middle of the GOP convention, just a few days ago, Trump had his lawyers send a threat to bring a baseless lawsuit.
Now imagine what a President Trump would do with the executive power of the United States granted to him under Article II. Under the unitary executive, President Trump would control all of federal law enforcement. He would have more than 100,000 armed law enforcement officials working for him. He would control the Justice Department and its lawyers, who would be working for him (and he wouldn't even have to pay them). Is it any surprise that one of the main themes of Trump's convention was that Trump's opponent should be indicted, a power that the Constitution would give to Trump to seek if he is elected?
Of course, many in the Justice Department and in federal law enforcement would try to stop Trump or at least to slow him down. FBI Director James Comey surely recognizes Trump's threat to the rule of law. Many career lawyers at the Justice Department would rebel. They're no doubt horrified by Trump, too, as this very good post by Benjamin Wittes suggests. And enough members of Congress have enough decency that Articles of Impeachment might follow, potentially removing Trump from office (raising the question of whether he would go easily if the Senate voted to remove him). But it's an amazing thing that seriously imagining a Trump Justice Department requires pondering such questions.
In short, if you aren't scared, you aren't paying attention. A fascist thug has won the GOP nomination and now has a very good shot of becoming president of the United States. And he hasn't run in sheep's clothing. As Justice Antonin Scalia would say, this wolf comes as a wolf.