The Ongoing Threat to Liberal Democracy from Trump and Trumpism

Richard L. Abel

UCLA

A week after Republicans won control of the U.S. House of Representatives in the November 2022 election (while Democrats increased their Senate majority), Donald Trump announced his candidacy for the 2024 presidential election. At the moment, unfortunately, his prospects for gaining the Republican nomination look very good. Nikki Haley, who had been his Ambassador to the UN, has also declared, but few take her seriously. Trump, his son Donald Jr., and many supporters spoke at the Conservative Political Action Conference in early March; but Gov. Ron DeSantis, Trump’s most formidable rival, did not even appear, although CPAC was held in his state. There is every reason to expect President Biden to succeed in his bid for a second term, laying the groundwork for a Biden-Trump rematch. All of that makes my contribution to the WCL Special Issue and this Symposium even more timely. In “The Fate of Liberal Democracy under Donald Trump,” I argue that his administration directly attacked and indirectly subverted liberal democracy in many ways, and most notably for this Symposium, in criminal justice policy and legal disputes. While they were threatened by political interference, the core legal institutions of the American state and civil society held, at least on this occasion. 

As a candidate, Trump had promised to “load up” Guantanamo with “bad dudes”; as president, he revoked Obama’s promise to close the notorious prison. After being elected, Biden renewed Obama’s promise and, in his first two years, transferred Abdul Latif Nasir to Morocco, Mohammed al-Qahtani to Saudi Arabia, Sufyian Barhoumi to Algeria, Assadullah Haroon Gul to Qatar, and Saifullah Paracha, Mohammed Ahmed Ghulam Rabbani and Abdul Rahim Gulham Rabbani (the latter two are brothers) to Pakistan, leaving 18 of the remaining 32 cleared for release (though most of those cleared are Yemeni, who cannot return to their war-torn homeland). Biden appointed a new special envoy (Trump had fired Obama’s holdover) to find countries that would take the 18. 

As a candidate, Trump “absolutely” promised to resume waterboarding and do “a hell of a lot worse” to “savages” (though there is no evidence that happened). By contrast, a military commission during the Biden administration heard evidence from a doctor specializing in treating torture victims that the “rectal feeding” of Abd al-Rahim al-Nashiri was “a very, very distressing painful, shameful stigmatizing event” which he experienced “as a violent rape, sexual assault.” This will probably compel the military judge to exclude al-Nashiri’s “confession.” And the torture of the five high-value detainees being tried for the 9/11 attacks, which has been the subject of endless pretrial litigation, seems likely to lead prosecutors to accept guilty pleas that would lead to life sentences rather than the death penalty. 

Trump threatened to “bomb the shit” out of ISIS and “take out” their families, warning terrorists he would “use the power the likes of which the United States has never used before.” After Iran shot down a US drone, Trump tweeted: “we were cocked and loaded” (misquoting John Wayne in “Sands of Iwo Jima”). By contrast, Biden’s Defense Secretary, Gen. Austin, issued new orders to reduce civilian harm in conflict situations. Soon after Sayfullo Saipov was apprehended for driving a truck onto a Manhattan bicycle path, killing eight and injuring 12, Trump called for “punishment that’s far quicker and far greater than the punishment these animals are getting right now” and tweeted that Saipov “SHOULD GET DEATH PENALTY!” Instead, he received due process in both the guilt and penalty phases of his trial during the Biden administration and was sentenced to life in prison, after a jury was unable to reach a unanimous decision as to whether he could receive a death penalty. Trump sought to politicize courts martial, calling Bowe Bergdahl “a dirty rotten traitor” and miming his execution even before his trial, and pardoning Mathew Golsteyn, Michael Behenna and Clint Lorance and taking credit for Edward Gallagher’s acquittal of most of the charges (all were guilty of war crimes).

Trump made racial hatred the centerpiece of both his 2016 campaign and the first three years of his administration, before that issue was displaced by the disastrous failures of his response to the COVID-19 pandemic. As a candidate he vowed to “strongly consider” closing mosques and “absolutely” would require all Muslims to register with the government (both actions would clearly have been unconstitutional). He appointed Islamophobes to high positions. He flaunted his ignorance of and contempt for the Constitution, citing a non-existent Article XII, threatening constitutionally protected flag burners with loss of citizenship, and claiming that Article II gave him “the right to do whatever I want as president.” After announcing his candidacy for 2024, he asserted that “Massive Fraud” in the 2020 election “allows for the termination of all rules, regulations, and articles, even those found in the Constitution.” 

When judges invalidated his first and second “Muslim bans,” he called one a “so-called” judge, said another had made a “terrible” decision, and denounced the “outrageous” Ninth Circuit (which heard the appeals), threatening to break it up. Nevertheless, courts also invalidated executive orders removing Green Card holders, withholding federal money from sanctuary cities, detaining and deporting children, separating families, compelling asylum seekers to remain in Mexico, denying asylum to those who had failed to seek it in the first country they entered, limiting asylum applications outside lawful ports of entry, diverting military funds to build the border wall, adding a citizenship question to the census form, sealing the border, denying legal status to government benefit recipients, ending Deferred Action for Childhood Arrivals and Temporary Protected Status, and limiting the resettlement of refugees. Unfortunately, the Supreme Court, which Trump and earlier Republican presidents had packed with loyal members of the conservative Federalist Society, upheld Trump’s third Muslim ban.

Trump’s unexplained admiration for and numerous ties to Putin (most of them conveniently mediated by third persons, allowing Trump deniability), together with Russia’s exposure of emails by Hillary Clinton and the Democratic National Committee, led Associate Attorney General Rosenstein to appoint Robert Mueller as Special Counsel. But Mueller reached a conclusion so obscure and convoluted that even lawyers could not understand it, much less laypeople:

“[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. … Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

Attorney General Barr promptly mischaracterized this as complete exoneration, which Trump immediately echoed. Nevertheless, the Mueller Report led to the prosecution of several Trump cronies with Russian connections: Stone, Flynn, Manafort, Gates and Cohen. Trump claimed that as “the chief law enforcement officer of the country” he was “allowed to be totally involved” in these cases. And Barr repeatedly intervened, transferring prosecutors he felt were      overzealous and even withdrawing prosecutions. Nevertheless, all of them led to convictions. But that just prompted Trump to use his unlimited power to pardon the first three (as well as many other equally undeserving people).

The Trump administration displayed both radical ruptures and significant continuities with its two predecessors. The President profoundly debased public discourse, lying with impunity and dismissing facts as “fake news.” He repudiated the foundational principle of the separation of powers, disrespecting the judiciary as an institution and pillorying judges who decided against him while bragging about packing the courts with conservatives. He legitimated racism, Islamophobia and xenophobia. But he often was more talk than action. And unfortunately for him (but fortunately for liberal democracy) he relied on the advice of non-lawyers (Stephen Miller) and legal incompetents (Rudy Giuliani). And legal institutions predictably exhibited path dependence (for better or worse), striking down unconstitutional executive orders and conducting fair criminal trials. 

In a forthcoming book, “Defending American Democracy: Resistance to Autocracy under Trump and Trumpism,” I will offer much fuller accounts of the ways in which Trump threatened liberal democracy, not just in the domains of immigration and criminal justice but also in his disastrous response to the COVID-19 pandemic and, most critically, the 2020 election. In the face of the pandemic Trump engaged in denial, lauded himself as “a very stable genius,” sidelined medical and scientific government experts, advocated for discredited drugs (hydroxychloroquine, ivermectin—even bleach taken internally!) and brought in fringe doctors who held out the fateful mirage that doing nothing would miraculously lead to “herd immunity.”

Even more threatening to liberal democracy was the way Trump undermined the legitimacy of elections. He began crying fraud well before both the 2016 and 2020 elections, when polls showed him behind. He challenged both electoral procedures and outcomes in court, first before November 3, 2020, then between the election and the January 6, 2021 insurrection, and finally even after Biden was inaugurated. Federal courts, including the Supreme Court (which Trump believed he “owned” because he had appointed three Justices), uniformly rejected these challenges, although judges divided sharply along partisan lines (measured by the party of the appointing president). Trump then tried to replace Attorney General Barr with the complaisant Jeffrey Clark, heeded the terrible advice of John Eastman (a law professor who later admitted that no court would buy his wild theories), and encouraged supporters to “be there” in Washington, D.C. on January 6, because it “will be wild,” hoping they would pressure Vice President Pence and Congress to undo the Electoral College vote, which Biden had won 306-232. Despite Trump’s outrageous betrayals of his oath of office, 147 House Republicans voted against certifying the Electoral College results, and just ten Republican Senators voted against Trump during the second impeachment (ten less than required the 67 necessary to convict), making the Republican Party fully complicit in his attack on liberal democracy.

My book concludes that the core institutions of the American state and civil society—courts, lawyers, media, civil servants, and experts—successfully defended liberal democracy this time. But I also find that each of these institutions is vulnerable to political interference. At the end of the day, therefore, only voters can protect the institutional framework of liberal democracy, including, paradoxically, the integrity of elections themselves. 

Richard L Abel is Connell Distinguished Professor of Law Emeritus and Distinguished Research Professor, UCLA

Suggested Citation: Richard L Abel, ‘The Ongoing Threat to Liberal Democracy from Trump and Trumpism’ IACL-AIDC Blog (8 June 2023) https://blog-iacl-aidc.org/autocratic-legalism/2023/6/8/the-ongoing-threat-to-liberal-democracy-from-trump-and-trumpism.