By Andrew C. McCarthy
Thursday, September 18, 2025
‘In America the law is king.” That’s how Thomas Paine put
it. “For as in absolute governments the King is law, so in free countries the
law ought to be king; and there ought to be no other.”
Nearing a year into his second term, President Trump has
some very different ideas about what the law, and who the king, should be.
Trump has not been solely responsible for the rule of
law’s erosion. There is history here. Kennedy and Johnson leveraged the FBI,
wiretaps, and tax records to coerce businesses and spy on rivals, journalists,
anti-war activists, and Martin Luther King Jr. And then there was Nixon and
Watergate.
Obama’s innovation was “phone and pen” governance: A
president who can’t get his way with Congress uses the administrative state to
work his will. He and Biden (the third Obama term) forged the template Trump is
exploiting: a dual perversion of prosecutorial discretion and equal protection
of law.
The former used to be an unremarkable resource-allocation
doctrine: There is more crime than prosecutorial resources, so priorities must
guide decisions on what cases to bring. Obama refashioned prosecutorial
discretion into a negation of the president’s duty to execute the laws
faithfully. Decisions were based not on how best to enforce Congress’s laws but
on how to effect the president’s will regarding what the law should be,
subordinating the law to executive fiat. When Trump, without any justification,
refuses to enforce the TikTok divestment statute (which mandates sale by the
platform’s China-controlled owner), he walks a well-trodden path.
Equal protection, our principle that justice is blind,
simultaneously gave way to the demonization of political opponents, gussied up
as “social justice” (in the service of Democrats’ racial obsessions, economic
distortions, climate alarmism, and sundry fetishes). Obama sicced the
prosecutors and regulators on conservative organizations, gun retailers, police
departments, etc. Biden’s lawfare aimed to bankrupt, incarcerate, and
politically annihilate Trump, the Democrats’ archnemesis.
By early 2024, with the Republican nomination all but
sewn up, Trump was reeling from half a billion dollars in civil verdicts. In a
due process travesty led by the Biden Department of Justice and Democratic
state district attorneys, he was looking at four potential criminal trials,
queued up to chain him to courtrooms until Election Day. With cases steered to
heavily Democratic jury pools, at least one preelection conviction seemed
inevitable. (Trump was indeed convicted in Manhattan, in an absurd case involving
hush money paid to a porn star.)
***
It’s easy now to forget that this pernicious strategy
nearly worked. Trump, however, will never forget. Four things about the
experience are indelible.
First, the brazenness of it. Democrats took unseemly glee
in wielding prosecutorial power against him. In her campaign for New York
attorney general, Letitia James vowed to dog Trump if elected, and she won in a
landslide. Law enforcement could be politicized openly, without apology. Trump
has devoured this lesson: Lawfare is craved by the parties’ base supporters,
online “influencers,” and the nighttime cable carnivals.
Second, Democrats showed no mercy. In her civil-fraud
prosecution of Trump, James tried to take his children down with him. Never the
forgive-and-forget type, Trump will not let that go. In September, when his
appointees at the FBI and DOJ executed search warrants at the home and office
of John Bolton, Trump’s former national security adviser and now tireless
critic, the president observed that Bolton now knew how he felt when the FBI
rifled through Melania Trump’s belongings during the Mar-a-Lago raid. Bolton
had cheered the Biden DOJ’s classified documents probe of Trump. Now Trump is
cheering his DOJ’s classified documents probe of Bolton.
Third, Trump was saved by the Supreme Court’s July 2024
ruling that he had immunity from prosecution for executive actions, even if
taken to further bogus claims of a stolen election. Trump argued a maximalist
position — namely, a president must be able to engage without fear in conduct
that many would condemn — and the Court substantially agreed with him. Or, at
least, the majority agreed that Congress, rather than courts and prosecutors,
is our system’s check on executive excess. This is constitutionally sound, but
if an unscrupulous president intimidates the House and Senate caucuses of his
party, he becomes unconstrained.
Finally, Democratic lawfare intensified Trump’s contempt
for his first-term aides. Until the wheels came off after his 2020 election
defeat, Trump mostly listened to these seasoned Washington insiders — kicking
and screaming, sure, but he listened. And what did he get out of it? A better
first term than he or we had any reason to expect, in my judgment. From his
skewed perspective, though, Trump lost because these advisers let the Democrats
“rig” the election only to have them, now victorious, persecute him — employing
the abuses of power that these advisers had admonished were beneath
presidential dignity. If he ever got back to the Oval Office, Trump would be
Trump.
***
Well, he won. A different manner of man might assess that
lawfare, having contributed mightily to the Democrats’ defeat, is too
politically toxic. But the president — now 79 and facing no more elections — is
obsessed with comeuppance. Congressional Democrats are an impotent minority,
and Trump sees their “fake news” media allies as so biased and unpopular that
bad press is good press.
Trump’s predecessors taught him nothing he didn’t already
know. He has never felt compunction about exercising power punitively. Still,
the Democrats’ lawfare in broad daylight was instructive. To the baseline they
set, now add Trump’s “transactional” nature, his apathy about the rule of law,
and his score-settling incentives and autocratic propensities.
This has proven combustible. And as Orwellian as it is
audacious. Upon taking the reins as attorney general, Trump loyalist Pam Bondi
established the “Weaponization Working Group.” Its self-described mission is to
end the politicized abuse of law enforcement by . . . yes, unabashedly
investigating Trump’s political nemeses. It’s now led by Ed Martin, raised to
MAGA heights for his exertions on behalf of January 6 rioters. Trump granted
clemency to all of them, 1,500 or so, including those who had viciously
assaulted police. For good measure, he installed Martin as the DOJ’s pardon
attorney. It’s a troll, but so was Trump’s attempt to appoint Martin as U.S.
attorney for Washington, D.C. That was too much, even for cowed Senate
Republicans, after Martin announced investigations of Biden DOJ special counsel
Jack Smith for the crime of investigating Trump, and of Senate Minority Leader
Chuck Schumer (D., N.Y.) over hyperbolic rants against conservative Supreme
Court justices.
No one thought Schumer’s foolish dudgeon was criminal,
but highlighting it frames the prosecution that Smith based on Trump’s infamous
January 6 Ellipse speech as sheer lawfare. To revise the history of the 2020
election as rigged and the ensuing indictments of Trump as partisan abuses of
power is a core element of the Trump DOJ’s crusade.
Under Bondi and Kash Patel, Trump’s chosen FBI director,
scores of agents and prosecutors who worked on the January 6 and Trump
investigations have been purged or reassigned. That effort was steered by Emil
Bove, the former Trump defense lawyer who’d been installed in a top DOJ post.
Bove forced the resignations of top New York federal prosecutors who objected
to his directive that they drop a corruption case against New York City Mayor
Eric Adams, in crude exchange for Adams’s cooperation in Trump’s illegal-immigration
crackdown. Bove has been rewarded with a coveted Third Circuit judgeship.
Meanwhile, Tulsi Gabbard and Bill Pulte, the myrmidons
Trump selected as director of national intelligence and director of the Federal
Housing Finance Agency, have devoted their offices to the revisionist
enterprise. Gabbard’s job is to hype Russiagate, the long exposed but — to the
consternation of the MAGA base — insufficiently prosecuted Democratic scheme to
smear Trump as a Kremlin mole. Based on Gabbard’s breathless disclosures, the
DOJ is investigating James Comey and John Brennan, Obama’s FBI and CIA
directors. (Trump grudgingly admits that the Supreme Court’s immunity ruling
protects Obama himself.) Pulte’s perusal of mortgage filings by Trump
tormentors Letitia James, Senator Adam Schiff (D., Calif.), and Federal Reserve
Governor Lisa Cook (a Biden appointee Trump is seeking to fire in his quest to
control the Fed) have similarly yielded DOJ bank-fraud probes.
Naturally, these investigations are collectively hampered
by weak evidence, immunity defenses, statute of limitations lapses, and patent
selective prosecution claims. But the objective is not necessarily to charge.
Lawfare makes the process the punishment. Trump’s targets will be put through
the wringer to which he was subjected: searches, audits, legal fees, and
constant anxiety.
When even a pretext for criminal investigation is
lacking, the president’s tack is bill of attainder–style extortion. He has
targeted the businesses of such antagonists as Chris Krebs (the former
cybersecurity official who refuted Trump’s 2020 election-fraud blather) and law
firms that formerly employed lawyers who led investigations against Trump. In
executive orders, Trump blithely castigates the firms for all manner of
misconduct and pronounces punishments — revoking security clearances, banning
firm personnel from entering federal buildings, voiding contracts — that could
potentially put them out of business. Some firms are fighting back in court.
Others, however, have staved off extinction by agreeing to provide free legal
work — aggregating to nearly a billion dollars in value — to Trump-favored
causes.
By the same heavy-handed tactics, Trump has clobbered
Harvard, Columbia, and other universities. It cannot be denied that there is
virtue in the crusade against campus antisemitism and DEI activism. But in
negotiations, Trump has demanded influence over curricula, faculty hiring, and
viewpoint auditing. To pressure for capitulation, the administration has frozen
billions in government research grants, blocked visa approval of foreign
students, and threatened to revoke the institutions’ tax-exempt status, patents,
and accreditation. Columbia said “uncle,” agreeing to pay $220 million (among
other concessions). Harvard won a first litigation round when an
Obama-appointed judge invalidated the funding freeze, but the university knows
that victory may be short-lived and that Trump has leverage against which
courts are powerless. Other institutions watch, and quake.
***
The shredding of due process is a feature of Trump’s
immigration enforcement. It’s evident in Trump’s assertions that Biden’s border
collapse makes compliance with statutory deportation procedures impractical and
that judges who cry foul are uniformly “radical,” “crooked,” “unhinged,”
“left-wing,” or “rogues.” The administration has orchestrated summary
deportations, invoking inapplicable wartime measures — such as the 1798 Alien
Enemies Act, which Trump says was triggered by a Venezuelan gang’s “invasion” of
the United States — to mass-remove alleged alien criminals to a notorious
Salvadoran prison. (They were later repatriated to Venezuela, even as Trump has
threatened war against the Maduro regime.) Other allegedly criminal aliens have
been dispatched to such third-world basket cases as South Sudan, Honduras, and
Eswatini (formerly Swaziland) — countries with which the administration cut
deals to accept deportees who can’t be sent back to their home countries.
You can’t say the in terrorem effect is not
working: The border crisis is over and aliens are self-deporting in droves. A
country in which law is king, though, asks not whether government hardball
works but whether it is legal.
Paradoxically, then, I’ll close on an optimistic note.
Trump’s legacy includes the judges he appointed, particularly on the Supreme
Court. It was a task he delegated to the Federalist Society and Senator Mitch
McConnell (R., Ky.), and it resulted in the appointment of jurists dedicated to
the law, many of whom faithfully ruled against the worst excesses of Trump’s
first term. At his second term’s start, Trump flooded the zone with
controversial executive orders. He has since claimed unilateral power to fire
agency heads and employees, cancel congressional funding, mothball agencies,
impose tariffs at will, and exert lethal military force against alleged drug
dealers on the high seas (an intensification of the saber-rattling against
Venezuela). Challenges are now working their way up the court system. With the
Republican Congress too paralyzed to check the president’s overreach — much of
it usurping Congress’s own power — it will be up to the judiciary to restore
order. The Supreme Court will do its part.
Of course, there is a limit to what judges can do. They
can decide only the cases that come to them and have no power to enforce their
judgments. But if law is still king in America, it is not because of courts. As
Alexis de Tocqueville recognized, it is because regard for the law is basic to
the American character. The resulting culture cannot be snuffed out by a
president’s indifference to it. It will always present an opportunity for new
leaders to rise on the promise of restoring the rule of law.
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