Amer­ica’s Gath­er­ing Legal Storm

….Trump prom­ises the mother of all stress tests for the US rule of law

Less than three weeks from now, Don­ald Trump will for the second time be sworn in as US pres­id­ent. Though much of his appeal stems from his dis­reg­ard for con­ven­tion, Trump is in core respects a very pre­dict­able fig­ure. Since los­ing the 2020 elec­tion, he has con­sist­ently vowed to use the tools of US justice to settle scores with enemies. On this the return­ing pres­id­ent should be taken lit­er­ally as well as ser­i­ously. The same applies to his view that offi­cials owe their loy­alty to him per­son­ally, rather than to the US con­sti­tu­tion.

In his first term, Trump often lost his cool when his more reck­less wishes were blocked by gov­ern­ment law­yers, Pentagon offi­cials, intel­li­gence agen­cies and oth­ers in the so-called power min­is­tries. This time he has taken pains to nom­in­ate fig­ures who can be relied on to do his bid­ding without regard to rules and con­ven­tion. The former attor­ney­gen­eral Bill Barr alleged that in his first term Trump sug­ges­ted that rivals be “executed”. Barr said that he did not worry about Trump’s impulses because he knew they would be thwarted.

Such com­pla­cency is no longer mer­ited. The Supreme Court last July sig­ni­fic­antly boos­ted Trump’s powers by grant­ing near sweep­ing immunity to the “offi­cial acts” of the US pres­id­ent. In the­ory this could include assas­sin­at­ing polit­ical adversar­ies. In prac­tice, it will almost cer­tainly include legal witch hunts against Trump’s detract­ors in polit­ics, the media and civil soci­ety. Some of them, such as Liz Cheney, the former Repub­lican con­gress­wo­man, and Mark Mil­ley, the former chair­man of the US joint chiefs of staff, he has repeatedly singled out.

It would be rash to assume that pun­it­ive impulse will stop at the water’s edge. Even before tak­ing office, Trump has threatened to expro­pri­ate the Panama Canal, which was returned to Panamanian sov­er­eignty in 1999, and expressed designs on Green­land, which has long been under Dan­ish sov­er­eignty. Though Demo­cratic and Repub­lican admin­is­tra­tions have ignored inter­na­tional law when it suited them, none has come close to Trump’s con­tempt for the very concept.

The cal­ibre of Trump’s senior nom­in­ees should con­cen­trate minds at home and abroad. Of these, Kash Patel, as head of the FBI, Tulsi Gab­bard, as dir­ector of national intel­li­gence, and Pete Heg­seth, as US defence sec­ret­ary, trig­ger the loudest alarms. Patel is a Trump ultra-loy­al­ist who has pub­lished his own enemies list. Gab­bard was an admirer of Bashar al-Assad’s bru­tal, recently deposed regime in Syria and often par­rots Vladi­mir Putin’s pro­pa­ganda on Ukraine. Heg­seth, a Fox News anchor, believes the senior US mil­it­ary should be purged and replaced with Trump loy­al­ists.

The most effect­ive check on Trump’s illiberal impulses could be the US Sen­ate. Repub­lic­ans have a slim 53-47 major­ity. All it would take is four Repub­lic­ans to block a nom­inee. Indeed, Matt Gaetz, Trump’s first choice as his next attor­ney-gen­eral, had to with­draw when it became clear that he lacked the votes. Genu­ine con­ser­vat­ives are surely aware that the rule of law lies at the heart of the US tra­di­tion and the mar­ket eco­nomy. The Sen­ate should block con­firm­a­tion of Patel, Gab­bard and Heg­seth. Lower court judges, the media and civil soci­ety also have great scope to blunt Trump’s worst impulses.

Like all strong­men, Trump fears the brave and has con­tempt for syco­phants. He has threatened to use his pres­id­en­tial powers to tar­get those who block his way. Cav­ing in to Trump’s wishes will only mag­nify them. The US sys­tem is about to receive the mother of all stress tests. Cour­age, above all, will be most pre­cious vir­tue in the months ahead.

Culled from: Financial Times