Trump places himself above the rule of law, so it’s easy to see him as a grave threat to it. But as much as the president distorts facts, the law itself is mostly still intact. The president, aided by Attorney General William Barr, other administration officials and Republicans in Congress, eagerly promotes the law, as when he tweets about perceived opponents like his fired former FBI director, James Comey (“What are the consequences for his unlawful conduct. Could it be years in jail?”), or former Obama secretary of state John Kerry (who supposedly “grossly violated the Logan Act with respect to Iran”). What’s good for the goose may be off limits for the gander, but it’s still good. We do not, for now, live in a tyranny with corrupt laws; we still have just laws. And that bodes well for the survival of norms that seem constantly under assault by a singular president.
The law only appears to be under attack because Americans disagree about facts — and about what officials should do to enforce laws in response to particular facts. But except for some arguments about presidential power under the Constitution, rarely do we disagree about what the law is. How to apply it is another matter.
Americans embrace the rule of law, but egregious departures speckle the country’s history. Often the law itself is not the culprit but rather a gross distortion of the facts applied to enforcement. For example, during the Red Scare after World War I, socialists and immigrants were broadly assumed to be dangerous and so were arrested under the Sedition Act; during World War II, Japanese Americans were broadly assumed to be loyal to Japan and so by executive order were relocated to internment camps; in the McCarthy era, people who had flirted with communism were broadly assumed to be disloyal to the United States, and so were hauled before Congress and lost their jobs. It was not so much that the laws needed changing (we agree that sedition is a crime), but rather the way people turned assumptions, particularly assumptions about large groups of other people, into facts, and the way people in power were allowed to apply the law.
Today, Trump, too, warps facts and uses distortion to promote his asymmetrical idea of law enforcement. There are those who uphold legal norms for all — political opponents as well as themselves. Members of Congress from both parties were vigilant in preventing financial conflicts of interest on the part of Obama administration officials (few people with financial conflicts were nominated for Senate-confirmed positions, thanks to a robust White House ethics office and a bipartisan commitment in the Senate to carefully screen nominees). On the other side are those who accuse only their opponents and rely on twisted facts to prosecute their case. For example, Trump and his supporters say President Barack Obama “spied” on Trump — the underpinning of “Obamagate,” what Trump calls “an illegal takedown” of a duly elected president — or that Hillary Clinton committed a crime with her email.
These same people will say the rule of law applies to everyone, but the “facts” somehow always show that it is only their opponents, never themselves, who violate the law. When caught with a bad set of facts, they answer that other “facts” need to be considered or that, whatever the facts are, they are not as bad as some unrelated alleged “facts” about someone on the opposing side. But in none of these cases do the players deny the law — or directly argue that it applies to some and not others.
That asymmetry was on display this month when the Supreme Court heard arguments on whether subpoenas from lawmakers and prosecutors would impose an undue burden on Trump as he performs the duties of the presidency. That was the argument President Bill Clinton made 20 years ago, when he asked the court to stay Paula Jones’s sexual harassment suit until after he left office. The court rejected that argument. Now, Trump and his lawyers, including the solicitor general of the United States, are arguing that this time, things are different. In their world of alternative facts, the burden on the presidency from subpoenas is now greater. (Never mind the actual facts: The subpoenas are directed to a third party, and Trump does not personally need to do anything to comply with them.) We will soon find out if the court — dominated by Republican-appointed justices — will decide the cases based on legal principles or on facts that it accepts as true simply because the president says they are true.
Such asymmetrical strategies are in force in the 2020 election. Facts: Trump encouraged Russia to intervene in the 2016 contest, took advantage of Moscow’s meddling and, last year, tried to get Ukraine to investigate Joe Biden. Alternative facts, now that Biden has not been linked to any wrongdoing in Russia or Ukraine: The presumptive Democratic nominee is in the back pocket of China, per the “Beijing Biden” mantra of the Trump campaign. The implication is that, even if voters believe that Russia wants Trump, they should know that China wants Biden. Except there’s no evidence that Biden is asking China to intervene in the election on his behalf or that he is Beijing’s chosen candidate.
In both instances, the sides appear to agree that it is wrong, even if not a violation of criminal law, for an American politician to be beholden to, or seek aid from, a foreign power. It’s just that some people lie about what happened in 2016 and what is happening in 2020. Deflection with misinformation — which is not a fundamentally new approach to foreign interference in American elections and other aspects of national security — is the prevailing strategy.
Similarly, all agree that it is objectionable to use a government position to benefit family members. We have heard a lot about Hunter Biden’s business dealings in Ukraine, for example, and nobody disputes that it would have been wrong if Joe Biden had used his position as vice president to enrich his son. There is no factual evidence that he did so, even if Trump’s allies and right-wing media point to a recording in which Biden urged Ukraine’s president to fight corruption by removing a tainted official. (This is what U.S. administrations do: tell governments seeking U.S. aid to clean up their act.) Meanwhile, Donald Trump Jr. and Eric Trump run their father’s businesses, which he still owns, and tour the world making deals on his behalf. “I haven’t benefited from my father’s taxpayer-funded office,” Donald Jr. said in March, claiming that Hunter had. He offered to debate the younger Biden, “and we can talk about all of the places where I’m supposedly grifting but Hunter Biden isn’t.” suggesting that he knew “grifting” to be wrong.
Differences can arise in interpretations of laws. Trump is the first president to appoint relatives to administration posts since Congress passed the anti-nepotism statute in 1967. He argues — with support from the Justice Department — that the statute does not apply to appointments inside the White House, such as those of his daughter Ivanka Trump and his son-in-law, Jared Kushner. (Trump is probably wrong on this; the Justice Department told President Jimmy Carter in 1977 that he could not make his son a White House intern.) Most recently, Trump allowed Kushner, who has no medical or public health experience, to coordinate the federal response to the coronavirus pandemic. Nevertheless, both sides agree that there is an anti-nepotism law.
Sexual assault is wrong, not to mention illegal, a notion hardly in dispute. The facts: A number of women have accused Trump of sexual assault. One woman has accused Biden, and there are considerable problems with her account of what happened 27 years ago. Both men deny the accusations, but only one paid off a porn star and bragged on video about assaults. But both sides agree that sexual assault is a crime.
In all instances, the differences between the sides are overwhelmingly in the realm of facts. Trump pushes an outrageous and false conspiracy theory that TV host Joe Scarborough killed an aide, but at least Trump says he accepts the notion that murder is wrong. (There are egregious exceptions, as when he tweeted early Friday that “when the looting starts, the shooting starts,” signaling his proposed extrajudicial response to the Minneapolis protests over the killing of George Floyd.) Both sides use some alternative facts, but Trump and his supporters have it down to a science; a Trump aide coined the term. The president breaks ground in his ability to sell the distortions to voters as easily as he sold almost $1 billion in casino bonds to investors in the 1990s. Now, instead of doing his job and letting doctors do theirs, he is selling novel cures for covid-19. Trump has spent his life selling alternative facts.
That would suggest we are doomed to a spiral of propaganda and the consequent destruction of the rule of law. It’s hard to discount the possibility, however remote, that we follow the path of the Weimar Republic in Germany in the 1930s — when a republican form of government was taken over by people who simultaneously embraced and manipulated legal norms, accusing their opponents of being corrupt and undermining the rule of law while flouting those norms themselves.
But we aren’t there yet. We are still a nation devoted to the rule of law. And this experience of the Trump presidency is more likely to reinforce that commitment. Trump and his supporters have not disavowed the law itself; they still recognize and often invoke it when making accusations against their opponents. And thus far Trump’s opponents still hold both themselves and the president accountable for adherence to the law. We emerged from Watergate with a stronger societal commitment to the rule of law. If this experience ends badly for Republicans in November, they may distance themselves from candidates and political operatives who embrace alternative facts, abuse power and flout the rule of law.