Donald Trump’s rhetoric has become a well-known part of the political landscape in the year since he entered the race for the White House. By now, we’ve all become used to his attacks on Mexicans, John McCain, Megyn Kelly, Carly Fiorina, Ben Carson, a disabled New York Times reporter, and Muslims, It’s also become standard operating procedure for Trump to attack the press any time they start asking him questions, calling them every imaginable epithet while at the same time using them to advance his interests and his campaign, and all to the cheers of his supporters, who often act more like a crowd out a professional wrestling event looking for blood than a group of voters at a campaign rally. More recently, Trump has turned his attention to attacking the Federal District Court Judge presiding over one of the cases contending that his now defunct “Trump University,” which was never a university of any kind, was basically one big consumer fraud. It started at least a week ago when Trump began referring to the Judge, Gonzalo Curiel of the U.S. District Court for the Southern District of California as a “Mexican” notwithstanding the fact that he was born in Indiana, contending that his ‘Mexican heritage’ created some sort of conflict of interest, and claiming that Curiel is “biased” and “unfair.” In retrospect, it’s clear that Trump’s attacks were related to Judge Curiel’s decision to authorize the release of documents related to the ongoing lawsuit, documents that clearly show the extent to which Trump’s so-called “University” was little more than a fraudulent marketing scheme.
All of this has led legal scholars on both sides of the aisle to wonder what kind of impact a President Trump could have on Constitutional government, the First Amendment, and the Rule of Law:
WASHINGTON — Donald J. Trump’s blustery attacks on the press, complaints about the judicial system and bold claims of presidential power collectively sketch out a constitutional worldview that shows contempt for the First Amendment, the separation of powers and the rule of law, legal experts across the political spectrum say.
Even as much of the Republican political establishment lines up behind its presumptive nominee, many conservative and libertarian legal scholars warn that electing Mr. Trump is a recipe for a constitutional crisis.
“Who knows what Donald Trump with a pen and phone would do?” asked Ilya Shapiro, a lawyer with the libertarian Cato Institute.
With five months to go before Election Day, Mr. Trump has already said he would “loosen” libel laws to make it easier to sue news organizations. He has threatened to sic federal regulators on his critics. He has encouraged rough treatment of demonstrators.
His proposal to bar Muslims from entry into the country tests the Constitution’s guarantees of religious freedom, due process and equal protection.
And, in what was a tipping point for some, he attacked Judge Gonzalo P. Curiel of the Federal District Court in San Diego, who is overseeing two class actions against Trump University.
Mr. Trump accused the judge of bias, falsely said he was Mexican and seemed to issue a threat.
“They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace,” Mr. Trump said. “O.K.? But we will come back in November. Wouldn’t that be wild if I am president and come back and do a civil case?”
David Post, a retired law professor who now writes for the Volokh Conspiracy, a conservative-leaning law blog, said those comments had crossed a line.
“This is how authoritarianism starts, with a president who does not respect the judiciary,” Mr. Post said. “You can criticize the judicial system, you can criticize individual cases, you can criticize individual judges. But the president has to be clear that the law is the law and that he enforces the law. That is his constitutional obligation.”
“If he is signaling that that is not his position, that’s a very serious constitutional problem,” Mr. Post said.
Beyond the attack on judicial independence is a broader question of Mr. Trump’s commitment to the separation of powers and to the principles of federalism enshrined in the Constitution. Randy E. Barnett, a law professor at Georgetown and an architect of the first major challenge to President Obama’s health care law, said he had grave doubts on both fronts.
“You would like a president with some idea about constitutional limits on presidential powers, on congressional powers, on federal powers,” Professor Barnett said, “and I doubt he has any awareness of such limits.”
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“I don’t think he cares about separation of powers at all,” said Richard Epstein, a fellow at the Hoover Institution who also teaches at New York University and the University of Chicago.
“I don’t think he cares about separation of powers at all,” said Richard Epstein, a fellow at the Hoover Institution who also teaches at New York University and the University of Chicago.
Mr. Trump has boasted that he will use Mr. Obama’s actions as precedent for his own expansive assertions of executive power.
“He’s led the way, to be honest with you,” he said in January on “Meet the Press,” referring to Mr. Obama’s program to spare millions of immigrants in the country unlawfully from deportation. “But I’m going to use them much better, and they’re going to serve a much better purpose than what he’s done.”
But Mr. Post said there was a difference between Mr. Obama’s view of executive power and that of Mr. Trump. “Whatever you think of Obama’s position on immigration, he is willing to submit to the courts,” he said. “There is no suggestion that he will disobey if the courts rule against him.”
Several law professors said they were less sure about Mr. Trump, citing the actions of another populist, President Andrew Jackson, who refused to enforce an 1832 Supreme Court decision arising from a clash between Georgia and the Cherokee Nation.
“I can easily see a situation in which he would take the Andrew Jackson line,” Professor Epstein said, referring to a probably apocryphal comment attributed to Jackson about Chief Justice John Marshall: “John Marshall has made his decision; now let him enforce it.”
Given Trump’s rhetoric, it’s easy to see why the concerns of these legal scholars is completely justified. In Donald Trump’s world, it seems as though there would be no limits on his power as President and that he wouldn’t necessarily feel constrained by the law, the limits of the Constitution, or the prerogatives of the other branches of government. If something stood in the way of getting his agenda passed, he comes across as a man who would simply ignore it, and if either Congress or the Courts said that he couldn’t do something it’s easy to see him simply ignoring them and doing as he wished. As Professor Somin notes above, President Obama has run afoul of the courts a few times during his Presidency, most recently with respect to his executive action on immigration, but his Administration has never taken the position that it would refuse to comply with a court’s ruling that his action was not authorized by law or the Constitution.
Other legal scholars said they were worried about Mr. Trump’s commitment to the First Amendment. He has taken particular aim at The Washington Post and its owner, Jeff Bezos, the founder of Amazon.
“He owns Amazon,” Mr. Trump said in February. “He wants political influence so Amazon will benefit from it. That’s not right. And believe me, if I become president, oh do they have problems. They’re going to have such problems.”
More generally, Mr. Trump has discussed revising libel laws to make it easier to sue over critical coverage.
“I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” Mr. Trump said in February. “We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”
On one hand, Mr. Trump seemed to misunderstand the scope of presidential power. Libel is a state-law tort constrained by First Amendment principles, and a president’s views do not figure in its application.
On the other hand, said Ilya Somin, a law professor at George Mason University, Mr. Trump’s comments betrayed a troubling disregard for free expression.
“There are very few serious constitutional thinkers who believe public figures should be able to use libel as indiscriminately as Trump seems to think they should,” Professor Somin said. “He poses a serious threat to the press and the First Amendment.”
Every President of recent memory has pushed back against the media when they felt reporters were going too far, of course, but few have reacted in the manner that Trump has to even benign criticism or questions regarding seemingly legitimate issues. When Megyn Kelly asked him questions regarding some of this past comments about women, he attacked her personally on a repeated basis. When a reporter for Univision sought to question him about his immigration policies, he had him physically, and rather violently, removed from a press briefing. Most recently, when reporters continued to press his campaign on the status of money he claimed to have raised for veterans at an event in February, Trump used the occasion to attack the media for even daring to ask questions. Not since Richard Nixon has there been a President or candidate for President who has displayed such open hostility toward the media, and it raises serious questions about exactly how committed a President Trump would be to the First Amendment and to the values of freedom of expression it embodies.
Based both on his rhetoric and his actions, Donald Trump gives the impression of being a President who sees himself as unconstrained by the law or the other branches of Government in the tradition of Jackson or Richard Nixon, both of whom set off Constitutional crises from which it took the nation years to recover. As in the case of those two previous Presidents, he would likely justify his actions by appealing to the same populist, anti-establishment rhetoric that has fueled his campaign from the start. The difference is that, this time, he would be President of the United States and his rhetoric would be tied to action that could do real damage to the Rule of Law and to the Constitution. Furthermore, unlike any of his predecessors, Trump seems to have command over a mob of supporters that would rush to his defense even when he was clearly wrong. This is why the arguments that equate Trump to the European far right, and even to fascists and authoritarians of the past, are completely on the mark. Either Donald Trump is lying to his supporters or he is the kind of man who cannot be trusted with political power even in a Constitutionally limited democratic republic. Under the circumstances, it would be foolish for anyone to believe that this is all a big con on Trump’s part, and much safer to assume that he quite simply cannot be trusted with political power.
